Marei and Secretary, Department of Employment and Workplace Relations

[2006] AATA 656

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 656

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2006/61

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANTWANIT MAREI

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr I R Way, Member

Date26 July 2006

PlaceSydney

Decision The decision under review is affirmed.

[SGD] Mr I R Way
  Member

CATCHWORDS

SOCIAL SECURITY – issue as to whether the Applicant is a member of a couple – consideration of the legislation – consideration of Applicant’s evidence and submissions – consideration of Respondent’s evidence and submissions – consideration of the legislative requirements for establishing a marriage-like relationship – the decision under review is affirmed.

Social Security Act 1991 – sections 4(2), 4(3)

Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164

Pelka v Secretary, Department of Family and Community Services [2006] FCA 735

REASONS FOR DECISION

26 July 2006      Mr I R Way, Member

1.      This is an application by Antwanit Marei (“the Applicant”) for review of a decision of the Social Security Appeals Tribunal (“the SSAT”) made on 16 December 2005.  The SSAT affirmed a decision of a Centrelink Authorised Review Officer that the Applicant is a member of a couple.

2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T21) as well as Exhibits R1 to R6 for the Respondent.

3.      At the hearing the Applicant represented herself and gave oral evidence.  Evidence was given by telephone by the Applicant’s husband, Mr Salama Azmi.  The Respondent was represented by Mr A Duri.  The proceedings at the hearing were conducted with the assistance of Ms Saafa Handan, an interpreter in the Arabic language.

issues and legislative framework

4.      The central issue in this matter is whether the Applicant is a member of a couple.

5.      This matter is to be determined within the provisions of the Social Security Act 1991 (“the Act”).

6. The relevant provisions of the Act are subsections 4(2) and 4(3) which define how to determine whether a person is a member of a couple as follows:

“…

4(2)Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

(a)the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or

…

4(3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

(a)the financial aspects of the relationship, including:

(i)any joint ownership of real estate or other major assets and any joint liabilities; and

(ii)any significant pooling of financial resources especially in relation to major financial commitments; and

(iii)any legal obligations owed by one person in respect of the other person; and

(iv)the basis of any sharing of day‑to‑day household expenses;

(b)the nature of the household, including:

(i)any joint responsibility for providing care or support of children; and

(ii)the living arrangements of the people; and

(iii)the basis on which responsibility for housework is distributed;

(c)the social aspects of the relationship, including:

(i)whether the people hold themselves out as married to each other; and

(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and

(iii)the basis on which the people make plans for, or engage in, joint social activities;

(d)any sexual relationship between the people;

(e)the nature of the people’s commitment to each other, including:

(i)the length of the relationship; and

(ii)the nature of any companionship and emotional support that the people provide to each other; and

(iii)whether the people consider that the relationship is likely to continue indefinitely; and

(iv)whether the people see their relationship as a marriage‑like relationship.

…”

applicant’s evidence and submissions

7.      The Applicant told the Tribunal she married Mr Azmi in Sudan in November 1992 or 1993, that they came to Australia at the end of 1994 and they have two sons, Kerelos Azmi born on 18 October 1995 and Michail Azmi born on 22 July 1999.  She said that she and Mr Azmi separated on 10 November 2003 and she advised Centrelink of this.  The Tribunal notes a statement to this effect, signed by the Applicant on 30 January 2004 (T11/33).  In this statement, the Applicant states that Mr Azmi continues to occasionally visit the children but does not stay overnight.

8.      In her oral evidence the Applicant told the Tribunal that she and Mr Azmi moved back together on 19 May 2005 for the sake of the children.  At that time, Mr Azmi was renting, in his name, a housing commission residence at 4/6-10 Ligar Street, Fairfield Heights and the Applicant said Mr Azmi continues to pay the rent for this residence.  She said there are three bedrooms, one with an en-suite which she occupies, one for her two sons and one which her husband occupies.  She said she pays for all the utilities (electricity, gas and telephone).  She said she does all the cleaning of the house, cooks for herself and her children and washes their clothes.  She said her husband eats out and that she does nothing for him.

9.      The Applicant explained why she and her husband had separated and subsequently have got back together at Ligar Street.  In essence she said that her husband’s family and in particular her mother-in-law, interfered in her life to the point where she could not take the ensuing conflict any longer.  She also blamed her husband, describing him as a weak man who only listened to his mother and did what his mother wanted.  She said that on her husband’s side, there were many relatives, 60 or so, who lived nearby and that there is no one from her own family in Australia to whom she could turn for support.  She said that she did have two friends but one of these had let her down and she could not trust this person anymore.  The other friend had gone to Dubai some 18 months ago.  When Mr Azmi left the Applicant, she said she was not sure where he went but thought he went to stay with his mother or other relatives.

10.     The Applicant told the Tribunal that her younger son suffered psychologically because of her separation from Mr Azmi and this was further compounded by the fact that her son was asthmatic and needed attention for this condition.  It is also the Applicant’s evidence that she and her husband were members of the Coptic Orthodox Church and that Father Suriel Hanna, from her local church, knew about her family circumstances and that he had suggested, for the sake of the children, she and Mr Azmi should be under one roof.  She said that under her church rights, divorce was not an option unless adultery had been proven and in this case divorce was not an option she could take and she was legally married to Mr Azmi.  The Tribunal notes the memorandum from Father Suriel to this effect (T20/64); that the Applicant’s evidence is that she sees Father Suriel regularly; and that Father Suriel refers to counselling the Applicant and Mr Azmi.  The Tribunal also notes the certificates from Dr Swid (Exhibits R1 and R2), the Applicant’s General Practitioner, which confirm that the Applicant’s younger son had problems because of his parents separation and that these problems appeared to have been resolved now that Mr Azmi is back with his children.

11.     The Applicant told the Tribunal that Mr Azmi generally came home between 6:30 and 7:00 pm on weekdays and he would play with the children, read them stories from the Bible and help them with their homework.  She said they would all be in bed by 8:00 pm and that sometimes the children sleep with her and often the younger son sleeps with his father.  She said she never had breakfast and the family never ate together, Mr Azmi taking his meal outside the house.

12.     In respect of social activities the Applicant said that they never did anything together as a family, however they would see each other at church.  She said she usually went to church once during the working week and if her husband was at home he would mind the children.  On Sundays she, her husband and the children went to church but she went to church separately.  She said her husband generally took the children out on Saturdays, usually to McDonalds and/or swimming as well as taking them to Sunday school at the church.  Although Mr Azmi has some 60 relatives in Australia, many of whom live close to where he lives, the Applicant said there was no social intercourse between her and them apart from seeing them at church at a distance.  She said Mr Azmi’s family did not like her and never visited her house.  In particular, she highlighted that her mother-in-law also does not like the children.  When asked by Mr Duri why Mr Azmi’s family did not like her, the Applicant said she did not know and that she had always been nice and respectful to her mother-in-law and her husband’s other relatives.  She said they consider her a stranger and she thought they enjoyed having power over her and that her husband was scared of his mother.  She also said Mr Azmi’s family did not offer any love or affection to her children and never gave the children any clothes.  The Tribunal is mindful however that the Applicant said she had rejected offers of money to the children (at church) from Mr Azmi’s relatives because she said she did not want anything from them.  The nature of the relationship between the families is highlighted by an event described by the Applicant where the police had to be called because of a fracas between her and her husband when she had refused to let him take the children to the park to be with his relatives.  She said she took this action because she was scared of what might happen to the children, there being no love or affection from the relatives.  When asked by the Tribunal if she trusted her husband with the children she said she did.

13.     In respect of financial matters it was the Applicant’s evidence that neither she nor her husband owns any real estate or any major assets nor do they jointly have any liabilities.  Apart from Mr Azmi paying the rent, the Applicant said she shouldered the burden of day-to-day household expenses.  The Applicant said that she and Mr Azmi had separate bank accounts and that this had been the situation for many years and before they separated.  The same applies to Medicare cards, she and her children being on a separate card to her husband.  She said Mr Azmi occasionally paid for school excursions for the children, “if he feels like it”, and gave the children $10 to $20 a week pocket money.  She said she met most of the school expenses.  In so far as cars are concerned, the Applicant said her husband had a work car and she had a car which she ran at her expense, however if she was not using the car Mr Azmi was free to use it.  This car replaced a car that had been registered in Mr Azmi’s name that had been stolen and was subject to an insurance claim.

14.     It was the Applicant’s evidence that she and Mr Azmi did not have a sexual relationship and this had been the situation for a long time.

15.     In respect of the Applicant’s and Mr Azmi’s commitment to each other, the Applicant told the Tribunal that neither Mr Azmi’s family nor her family knew the extent of their marital problems, and that only Father Suriel knew the true circumstances.  The Applicant said it was her intention to remain in the current situation for the sake of the children.  When asked by the Tribunal whether she would consult her husband about a crisis affecting one of her children the Applicant initially had difficulty answering the question and appeared to evade giving a direct answer.  It became apparent that there was some difficulty in the translation of the question, the Applicant directing her answer to the taking of immediate action herself to deal with any crisis.  However, eventually her answer was that she would not necessarily consult him.  The Applicant made it clear that in general she and her husband do not communicate at all.  The Tribunal notes that the Applicant told the SSAT neither she nor her husband would care for the other in the event of illness.  The Tribunal also notes that an ARO in discussion with the Applicant in August 2005 recorded the Applicant telling her she and her husband both make decisions regarding their children and that “any decisions involving your children are made with your husband” (T19/62).

16.     The Applicant told the Tribunal that all she wanted was to be treated fairly and that she did not want to be forced into a situation where she would have to go to court to seek a divorce.  In essence, she did not consider herself to be in a marriage-like situation and that both she and her husband were putting up with the arrangements that were in place, solely for the benefit of the children, and particularly her youngest who had been so badly affected by their separation.

mr azmi’s evidence

17.     In a written statement dated 23 November 2005 (Exhibit R4) Mr Azmi declared as follows:

“To Whom It May Concern

I am [sic] Salama Azmi of 4 / 6 Liger Street Fairfield NSW 2165 do hereby declare that I am separated from my wife Antwaint [sic] Marei and that I wanted to divorce her but the our [sic] Coptic Church does not allow divorce in our case.  I could in no way continue the marriage because we could not get together.  We are living in completely separate rooms and she is taking care of our little sick child.  His mental and health condition requires her and my presence in the same house.  In the meantime I do not want to expose my little children to problems which may bring the police before them and affect their mental and psychological health.

…”

18.     In his evidence by telephone Mr Azmi said that Father Suriel had said if his wife wants to come back he should accept this for the sake of the children and this is what happened.

19.     He said the house that he and his wife and children are living in is provided by the Department of Housing, it is leased in his name for approximately $700 rent per month and that he and his wife each pay half of the rent.

20.     He said that as far as food is concerned they having nothing to do with each other.  He said he occupies one bedroom, does not interfere with the rest of the house, does not use the phone, does not have or watch television, comes home at about 4:00 to 5:00 pm, showers, helps the children with their homework or reading and goes to bed early.  He said he does not eat dinner or breakfast, only lunch out, except that he does some cooking on Saturdays and eats at the church on Sundays.

21.     When asked about his relationship with his wife, Mr Azmi said he had stopped talking to her.  He said she thinks he does not know anything and is stupid, that everything he does is wrong, that he has no worthwhile ideas and she argues about everything and gives him a headache.

22.     Mr Azmi said his family were not aware of the extent of separation between himself and his wife and only Father Suriel knew the true circumstances.

23.     In respect of other activities Mr Azmi said he worked for the post office and apart from taking his children out on Saturdays and going to church on Sundays he had no social activities at all including with his own family.  He said he had agreed to put up with being in the same house as his wife for the sake of the children and does not want them to end up on the streets or taking drugs.

respondent’s submissions

24.     Mr Duri submitted that on the material before the Tribunal, the Tribunal would be satisfied that the Applicant and Mr Azmi are not living separately and apart.  In so submitting, Mr Duri said that the Respondent accepted that their relationship was not a particularly happy one and there was a period when they were separated.  However, it was submitted, the Applicant and Mr Azmi had reconciled for the sake of their children, there is a pooling of financial resources in respect of housing costs and car use, the nature of the household is such that there is joint responsibility for looking after the children while the wife does the housework, both parties have not told family members of the separation and they continue to co-operate in relation to the care of the children and they have no intention to reside separately or to divorce.  It was further submitted that the absence of a sexual relationship and the absence of shared social activities and the fact that the Applicant did not get on with Mr Azmi’s family were not critical factors when viewed generally in the context of the incidence of such factors in other marriages.  Furthermore, it was submitted that the fact that both parties had tried and were trying to resolve their difficulties through counselling with Father Suriel should be viewed positively when looking at their circumstances globally.

25.     Finally, it was submitted that it seemed inconceivable that the Applicant and Mr Azmi would not discuss problems that their children might have (starting with the decision of both parties to end their separation for the sake of the children); and that the Applicant’s apparent difficulty in answering the Tribunal’s questions about whether she would consult her husband about situations affecting the children brought into question her credibility in respect of such matters.

consideration

26.     There is no dispute between the parties that the Applicant and Mr Azmi are legally married and the Tribunal so finds.

27. The central issue before the Tribunal is whether or not the Applicant and Mr Azmi are living separately and apart on a permanent or indefinite basis. Subsection 4(3) of the Act provides for the Tribunal, in its consideration of this issue, to include matters such as financial aspects, nature of household, social aspects, sexual relationship and nature of the commitment of each person in the marriage. Clearly these particular matters are to be treated only as indicators and in determining this matter the Tribunal is to have regard to all the evidence and other material before it in forming an opinion about the relationship of the Applicant and her husband: see Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 170.

28.     Turning firstly to the financial aspects of the relationship between the Applicant and her husband.  While there is some conflict in the evidence the Tribunal accepts Mr Azmi’s evidence that he and his wife each pay half of the rent and about the payment of rent for the housing commission house Mrs Marei and Mr Azmi occupy, the Tribunal is satisfied that there is a pooling of financial resources in respect of the payment of rent: see Pelka v Secretary, Department of Family and Community Services [2006] FCA 735. The Tribunal is also satisfied that both wife and husband have the use of a car that, has in effect, been provided by the husband and is currently maintained by the wife. In respect of household expenses and other day-to-day expenses the Tribunal accepts that the Applicant provides for these and that Mr Azmi does provide pocket money to the children and on occasion meets some school expenses. The Tribunal accepts that there is financial separation of both parties’ bank accounts. However, the Tribunal notes that such separation has been in place from the early days of their marriage and it is not unusual to find married couples with separate bank accounts. The Tribunal is mindful that in this case, the financial affairs of the Applicant and Mr Azmi are relatively simple, there is no common property, and there are no assets or liabilities of any note. While financial matters can never be a determinative factor, the Tribunal nevertheless considers that in this case there is a significant pooling of financial resources which on balance, indicates that the Applicant and Mr Azmi do not live separately and apart.

29.     In so far as the nature of the household is concerned, clearly the Applicant and her husband and their children reside in the same house and the Applicant renders most of the household services.  However, Mr Azmi does provide significant support to his two children in particular his younger son.  On the evidence of both parties, the provision of this support is the major factor for their reconciliation and there cohabitation at Ligar Street.  Dr Swid, the Applicant’s General Practitioner, has stated that as a result of this support the younger son has overcome his psychological problems and is once more a happy young child.  Although the living arrangements highlight the fact that the Applicant and Mr Azmi do not have a close personal relationship, nevertheless the home in which they jointly reside with their children does provide the means for the establishment and maintenance of the family relationship in respect of the provision of care and support for their children and clearly the children, particularly the younger son, enjoy the benefits of this family environment and the support both parents are able to provide on a day-to-day basis.  The Tribunal is of the view that the care and protection of the children of the marriage by both parties is a significant essential element of a marital relationship.  While the evidence of both parties points to separate living arrangements for the Applicant and her husband, nevertheless, taking into account the whole family situation, the Tribunal is satisfied, on balance, that the nature of the household does not indicate that the Applicant and Mr Azmi live separately and apart.

30.     Both the Applicant and Mr Azmi have given evidence that apart from church activities they do not engage in social activities.  It would appear that this situation has prevailed for some time and is not a consequence of their marital difficulties.  In regard to church activities, while both parties attend church, they do not use church activities as a means of socialising together.  However, on their own evidence, they wish to project an image of togetherness.  The Tribunal is of the view that any lack of social activity in this case is not a significant indicator of the parties living separately and apart.

31.     In respect of sexual relations the Applicant told the Tribunal there is no sexual relationship between her and her husband and that this has been so for a long time.  The absence of a sexual relationship which is longstanding, while being an indicator of living separately and apart, is in the Tribunal’s view a factor which should be given little weight in considering whether there has been a recent breakdown in the marriage of the parties.

32.     The Applicant’s and Mr Azmi’s commitment to each other clearly is lacking.  The Tribunal is satisfied that there are entrenched difficulties in their interpersonal relationships through a lack of communication and that there is a high level of animosity between the Applicant and Mr Azmi’s family members.  However, the Applicant and Mr Azmi have resumed living together and they do share a strong commitment to the care, welfare and support of their two children.  The Applicant’s evidence about the extent of her interaction with Mr Azmi in respect of the children’s affairs is somewhat inconsistent.  The Tribunal accepts that she was confused in giving her oral evidence because of difficulties in clearly understanding the questions being put to her through the interpreter.  However, when the totality of the evidence and other material before the Tribunal is considered, the Tribunal is satisfied that the Applicant and Mr Azmi individually and collectively do care for their children.

33.     The Tribunal is also satisfied that both the Applicant and Mr Azmi, on their own evidence, intend to continue residing together and caring for their children and that, difficult as it may be, they still wish to project an image to the outside world of togetherness.

34.     After careful consideration of the evidence of the Applicant and Mr Azmi, the submissions of both parties and all of the other material before it, and following the reasoning given above, the Tribunal accepts that the relationship between the Applicant and Mr Azmi is an unhappy one.  However, on balance, the Tribunal is of the opinion that they are not living separately and apart on a permanent or indefinite basis.

35.     The Tribunal therefore affirms the decision under review.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member.

Signed:  Associate

Date of Hearing  29 June 2006
Date of Decision  26 July 2006
Representative for the Applicant          Self-represented
Advocate for the Respondent               Mr A Duri,
  Centrelink Legal Services Branch