Marei v Department of Employment and Workplace Relations

[2007] FMCA 458

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAREI v DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS [2007] FMCA 458

ADMINISTRATIVE LAW – Appeal – Administrative Appeals Tribunal – member of a couple – meaning of “pooling of resources” – factors Tribunal bound to take into account in forming an opinion about a relationship – whether care and protection of the children of the marriage by both parties is a significant essential element of a marital relationship.

Administrative Appeals Tribunal Act 1975 (Cth), ss.43, 44
Social Security Act 1991 (Cth), ss.4, 500, 503
Marriage Act 1961 (Cth), s.23B
Family Law Act 1975 (Cth)

Federal Court Rules Order 53 Rule 4
Federal Magistrates Court Rules rr.1.05, 5

Australian Securities & Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244
In the Marriage of Bell [1979] FLR 216
Collector of Customs v Pozzolanic (1993) 43 FCR 280
Garner v Repatriation Commission (1998) 53 ALD 297
Gerrie v Secretary, Department of Family and Community Services [2003] AATA 1188
In the Marriage of Todd (No.2) (1976) 9 ALR 401
Lambe v Director General of Social Services (1981) 57 FLR 262
Lynam v Director General of Social Security (1983) 52 ALR 128
Macrae v Macrae [1967] 1 NSWR 745
Main v Main (1949) 78 CLR 636
McDonald v Director General of Social Security (1984) 1 FCR 354
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Mummery v Mummery [1942] P 107
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Re Donald & Director General of Social Security (1983) 5 ALN 185
Secretary, Department of Family & Community Services v Mehanna (2005) 87 ALD 387
Secretary, Department of Family and Community Service v WAP [2000] AATA 7
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
VYV v Secretary, Department of Social Security [1996] AAT 10723 (query citation)
Secretary, Department of Family and Community Services v Mehanna (2005) 87 ALD 387
Zhang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 30

Applicant: ANTWANIT MAREI

Respondent: SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

File Number: SYG2762 of 2006

Judgment of: Barnes FM

Hearing date: 8 February 2007

Delivered at: Sydney

Delivered on: 13 April 2007

REPRESENTATION

Counsel for the Applicant: Ms K. Sant

Solicitors for the Applicant: Legal Aid Commission of NSW

Counsel for the Respondent: Mr G. Johnson

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Leave to further amend the amended notice of appeal is granted.

2. The appeal is allowed.

3. The decision of the Administrative Appeals Tribunal of 26 July 2006 be set aside.

4. The matter be remitted to the Tribunal for reconsideration according to law.

5. The respondent pay the applicant’s costs of the appeal as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2762 of 2006

ANTWANIT MAREI

Applicant

And

SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

Respondent

REASONS FOR JUDGMENT

Background

1. The applicant, Mrs Marei, is from the Sudan.  She is married to Mr Salama Azmi.  The couple came to Australia in 1994. They have two children born in 1995 and 1999.  On 16 December 2003 Mrs Marei, who was in receipt of a parenting payment at the ‘partnered’ rate under the Social Security Act 1991 (Cth) (the Act), advised Centrelink that she and Mr Azmi had separated on 10 November 2003. Thereafter she was paid parenting payment at the single rate. Mrs Marei provided Centrelink with a further statement about her circumstances on 30 January 2004.

2. However on 1 June 2005 Mrs Marei advised Centrelink that she had moved into Mr Azmi’s home on 19 May 2005 “for the sake of the child as it was too hard for me to explain … to my child that we are separated”.  In a form completed on 9 June 2005 she claimed that she and Mr Azmi were not a couple. 

3. On 9 June 2005 Centrelink determined that Mrs Marei and Mr Azmi were members of a couple within s.4(2) and (3) of the Social Security Act 1991 for the purposes of the Act and as a result Mrs Marei was again paid parenting payment at the partnered rate (which is a lower rate than the single rate). 

4. Mrs Marei sought review of that decision by a Centrelink-authorised review officer on the basis that she did not consider herself partnered.  On 16 August 2005 a Centrelink-authorised review officer affirmed the decision to treat Mrs Marei as a member of a couple from 19 May 2005.  On 16 December 2005 the Social Security Appeals Tribunal affirmed that decision and on 17 January 2006 Mrs Marei lodged an application for review of the SSAT decision in the Administrative Appeals Tribunal (the AAT).

5. Mrs Marei attended an AAT hearing and gave oral evidence.  Evidence was given by her husband Mr Azmi by telephone.  On 26 July 2006 the AAT affirmed the decision of the SSAT. 

6. On 23 August 2006 the applicant filed a notice of appeal in the Federal Court of Australia under s.44 of the Administrative Appeals Tribunal Act 1975 (Cth) from the decision of the AAT. On 19 September 2006 the matter was transferred to this Court. The applicant relies on a second further amended notice of appeal filed, with leave of the Court, on 15 February 2007.

The AAT decision

1. The central issue for the Tribunal was whether the applicant was “a member of a couple” for the purposes of s.4(2) and (3) of the Social Security Act 1991 because, while she was entitled to parenting payment under s.500 of the Social Security Act 1991, her rate of parenting payment would depend on whether or not she was a member of a couple (s.503).

2. Section 4 provides relevantly:

   4(1) In this Act, unless the contrary intention appears:

   …

   “member of a couple” has the meaning given by subsections (2), (3), (3A), (6) and (6A);

   …

   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

   (b)     all of the following conditions are met:

   (i)     the person has a relationship with a person of the opposite sex (in this paragraph called the “partner”):

   (ii)     the person is not legally married to the partner

   (iii)    the relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship;

   (iv)    both the person and the partner are over the age of consent applicable in the State or Territory in which they live;

   (v) the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.

   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.

   4(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage‑like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.

3. It was not disputed, and the Tribunal found, that Mrs Marei was legally married to Mr Azmi at all relevant times.  Hence the question for the Tribunal was whether she was “living separately and apart” from Mr Azmi “on a permanent or indefinite basis” under s.4(2)(a) of the Act.

4. The Tribunal recognised that this was the central issue. It stated that the matters in s.4(3) of the Act were to be treated “only as indicators” and that in determining the matter the Tribunal was 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 (the parties to the marriage). The Tribunal outlined the evidence and submissions before it and addressed matters referred to in s.4(3).

5. In relation to financial aspects of the relationship, the Tribunal accepted Mr Azmi’s evidence that he and his wife each paid half of the rent to the Housing Commission for the house they occupied.  The Tribunal found that it was satisfied there was “a pooling of financial resources in respect of the payment of rent”.  It cited the decision of French J in Pelka v Secretary, Department of Family & Community Services [2006] FCA 735. It was also satisfied that both had the use of a car, in effect provided by the husband and maintained by the wife, that the applicant provided for household and day to day expenses and that her husband provided pocket money to the children and on occasion met some school expenses. The Tribunal accepted there was financial separation of both parties’ bank accounts, but noted that this separation had been in place from the early days of the marriage. The Tribunal stated that it was “mindful” that the financial affairs of the applicant and her husband were relatively simple, that there was no common property and no assets or liabilities of any note.  It stated “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”.

6. In relation to the nature of the household, the Tribunal found that the applicant and her husband and children resided in the same house and that the applicant rendered most of the household services, although Mr Azmi provided “significant support to his two children in particular his younger son”.  The Tribunal accepted on the evidence of both parties that the provision of this support was the major factor “for their reconciliation and their cohabitation”.  It referred to evidence from the applicant’s general practitioner, Dr Swid, that as a result of this support the younger son had overcome psychological problems and was once more a “happy young child”. 

7. The Tribunal found that although the living arrangements highlighted the fact that the applicant and her husband did not have a close personal relationship, the home in which they resided with their children provided “the means for the establishment and maintenance of the family relationship in respect of the provision of care and support for the children” and that the children enjoyed the benefits of this family environment and the support “both parents are able to provide on a day to day basis”.  It stated that it was “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”.

8. The Tribunal then referred to social activities and the evidence of the applicant and her husband that, apart from church activities, they did not engage in social activities, but found: “It would appear that this situation had prevailed for some time and is not a consequence of their marital difficulties”.  It accepted that while both parties attended church they did not use church activities as a means of socialising together, but also that on their own evidence “they wish to project an image of togetherness”.  The Tribunal was of the view that any lack of social activity was “not a significant indicator of the parties living separately and apart”.

9. The Tribunal found that the longstanding absence of a sexual relationship, while being an indicator of living separately and apart, “should be given little weight in considering whether there has been a recent breakdown in the marriage of the parties”. 

10. The Tribunal also found that the applicant and her husband’s commitment to each other “clearly is lacking” and that there were entrenched difficulties in their interpersonal relationship through a lack of communication and a high level of animosity between the applicant and her husband’s family members.  However it found that “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”. 

11. The Tribunal was satisfied that the applicant and her husband, on their own evidence, intended to continue residing together and caring for the children and that “difficult as it may be, they still wished to project an image to the outside world of togetherness”.  The Tribunal concluded that it accepted that the relationship between the applicant and Mr Azmi “is an unhappy one”.  However it continued: “On balance, the Tribunal is of the opinion that they are not living separately and apart on a permanent or indefinite basis”.  It therefore affirmed the decision under review.

This application

1. The further amended notice of appeal which was filed on 20 December 2006 specified eight questions of law to be raised on the appeal (see Order 53 Rule 4 of the Federal Court Rules).  At the hearing, counsel for the applicant indicated that questions (f) and (g) (which related to who bore the “onus” of satisfying the Tribunal or establishing certain matters) were not pressed.  The applicant sought leave to amend the notice of appeal to add an additional question.  The respondent did not consent to the amendment.  A second further amended notice of appeal (including the proposed amendment) was filed with leave of the Court on the basis that the Court would consider the issue of leave to amend the notice of appeal after hearing argument on the proposed ground.  The notice of appeal also sets out grounds relied on in support of the orders sought.

2. Before addressing the particular questions raised on this appeal, I note that each of the parties referred generally to the approach taken to s.4(3) of the Act by the Federal Court in Pelka v Secretary, Department of Family and Community Services (2006) 51 FCR 546. In that case, while considering the notion of a “marriage-like relationship” under s.4(2)(b)(iii), French J (at [36] – [47]) referred to authorities in relation to earlier statutory provisions which did not contain provisions the equivalent of s.4(3) of the Act, in which it had been stated that it was necessary to take into account all facets of the interpersonal relationship of the two people in issue (see Lambe v Director General of Social Services (1981) 57 FLR 262 at 271). French J suggested at [40] that the nature of the exercise under the present Act was “much the same” as that required under previous statutory formulas, referring with approval to Lynam v Director General of Social Security (1983) 52 ALR 128 in which Fitzgerald J applied Lambe and stated (at 131):

   Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other.  What must be looked at is the composite picture.  Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error.  The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration.  In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.

3. French J also referred to Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 in which, as in this case, the question for the decision-maker was whether a married person was “living separately and apart” from her spouse. In that case the woman in question had separated from her husband, but returned home “as a matter of convenience and because of his assistance in caring for their disabled child” (Pelka at [39]).  In Staunton-Smith O’Loughlin J had endorsed the observations of Fitzgerald J in Lynam referred to above and suggested (at [73]) that it was not sufficient to “merely note that a couple are sharing accommodation, nor is it sufficient to note that one is financially dependent on the other, it is necessary to delve deeper to find the reasons for those arrangements.  Those reasons will be better indicators in determining the correct nature of their relationship.” 

4. In Pelka French J also noted that in Garner v Repatriation Commission (1998) 53 ALD 297 Tamberlin J had observed that a provision comparable to s.4(3) “required regard to be had to all of the circumstances of the relationship, albeit it set out a number of matters which must be taken into account” (Pelka at [44]). 

5. While the issue in Pelka was whether there was a “marriage-like relationship for the purposes of s.4(2)(b)(iii) of the Act”, the principles in Pelka and the need to have regard to the whole of the circumstances are also of relevance in the present context, bearing in mind however that the issue for the decision-maker was whether a person who was legally married to another person was “not living separately and apart from that person on a permanent or indefinite basis” under s.4(2)(a) of the Act.

6. As s.4(3) states, in forming an opinion about the relationship between two people, whether for the purposes of determining whether there is a marriage-like relationship or whether a person is or is not living separately and apart from their spouse on a permanent or indefinite basis, the decision-maker must have regard to “all of the circumstances of the relationship”. Those circumstances are not limited by the factors listed in s.4(3) (Pelka at [46]) but the decision-maker must have regard to each of the five matters listed in s.4(3) (the financial aspect of the relationship, nature of the household, social aspects of the relationship, any sexual relationship and the nature of the peoples’ commitment to each other). In having regard to those five matters the decision-maker “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)” (emphasis added).

1. French J suggested in Pelka at [46] that in doing so the decision-maker concerned with whether there was a “marriage-like relationship”:

   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 the marriage-like relationship and those which weigh in favour of it. 

2. Similarly, in the context of forming an opinion as to whether a married person is not living separately and apart from his or her spouse on a permanent or indefinite basis, the decision-maker must consider the total picture, bearing in mind that consideration must be given to those factors which weigh against the formation of an opinion that the parties not living separately and apart from each other on a permanent or indefinite basis and those which weigh in favour of such an opinion. In this context there may be issues both as to whether the persons live separately and apart and also as to whether any such separation is permanent or indefinite. It is also important to note that, in contrast to the formation of an opinion that a relationship is a marriage under s.4(2)(b)(iii), in issue in this instance was the Tribunal’s opinion as to a negative – that is that the person was not living separately and apart from the spouse on a permanent or indefinite basis.

Financial aspects of the relationship

1. The first question of law raised by the appeal is whether, on the proper construction of s.4 of the Act, each member of a household paying his or her own share of the rent amounts to “a significant pooling of resources” within the meaning of that provision.

2. The applicant submitted that the relevant findings of the AAT in relation to financial aspects of the relationship were that each party paid half the rent and there was a pooling of financial resources in respect of the payment of rent, that both had the use of the car provided by Mr Azmi but maintained by the applicant, that the applicant paid household and other day to day expenses while Mr Azmi provided pocket money to the children and met some of their school expenses, that there was financial separation of the parties’ bank accounts and that there was no common property.  It was noted that the Tribunal then found that there was a “significant pooling of financial resources which on balance, indicates that the applicant and Mr Azmi do not live separately and apart”.

3. It was submitted that the question was whether on the proper construction of s.4 of the Act each member of a household paying his or her own share of the rent amounts to a significant pooling of resources within the meaning of s.4(3)(a)(ii) which refers to “any significant pooling of financial resources especially in relation to major financial commitments”.  The applicant argued that the Tribunal made an error of law as the same type as was found to have been made in Pelka when it characterised the payment by each party of his or her share of the rent as a significant pooling of financial resources. 

4. In Pelka, when considering the financial aspects of the relationship between Ms Pelka and Mr Kuhl, French J (at [52]) addressed the meaning of the term “pooling of financial resources” in s.4(3)(a)(ii). His Honour referred to the ordinary meaning of the word “pool” in the New Shorter Oxford English Dictionary as “Put resources into a common stock or fund; share in common, combine for the common benefit” and suggested that this was the sense in which the noun “pooling” was used in s.4(3)(a)(ii). French J stated: “It plainly involves something more than financial cooperation or separate contributions to different elements of household expenses”.  In that case the so-called “barter system” (whereby rent from Mr Kuhl had been foregone by Ms Pelka for an annual overseas holiday) was said not to constitute a pooling of financial resources in the relevant sense.  French J stated at [52] that if one person paid for or contributed to overseas travel for the other, instead of paying rent to that person, that was not “a pooling of financial resources” any more than his payment of rent would be so described.  In that context his Honour held that there was no evidence of pooling “properly so called” identified by the Tribunal and that the Tribunal’s finding that there was such pooling appeared to reflect an error of law that was a misconstruction of s.4(3)(a)(ii). His Honour observed that there was no pooling in relation to major financial commitments “which is a particular focus of the pooling to be considered under s.4(3)(a)(ii)” (at [52]). 

5. It was also pointed out for the applicant that French J stated in Pelka at [53] that “cooperation of itself does not take a relationship very far down the path towards characterisation as ‘marriage-like’”.  It was contended that Pelka was clear authority for the proposition that paying one’s own share of the rent does not amount to a pooling of resources and that the current matter was indistinguishable.  It was argued that whilst the Tribunal had cited Pelka, it did not follow or apply the principles in that case.  It was suggested that, if anything, the facts as found in the present case were probably stronger than in Pelka, as there could be no doubt that each party was only paying his or her share of the rent, as there was an explicit finding to that effect by the Tribunal.  On this basis it was contended that if Pelka was followed the appeal must succeed as the Tribunal had misconstrued s.4(3)(a)(ii).

6. Counsel for the applicant submitted that in interpreting the legislation the underlying purpose of differentiating between the benefits payable to those who are single as compared to those who “enjoy the benefits” of marriage or similar relationships (see French J in Pelka at [36]) should be borne in mind, and that the arrangement as to payment of rent was exactly as would have been expected if the applicant and Mr Azmi were simply flatmates.  It was suggested that the Tribunal had clearly misconstrued the legislation in finding that this factor indicated that the applicant and Mr Azmi did not live separately and apart, when it should have been weighed the other way.  It was also submitted that to describe paying one’s own share, and no more, as a relevant “significant pooling of resources” deprived that term of all meaning, given the purpose of the criteria to differentiate between relationships that resemble marriage and those that do not. 

7. It was contended that the Tribunal’s ultimate finding as to financial aspects of the relationship (that there was a significant pooling of financial resources which indicated that the applicant and Mr Azmi did not live separately and apart) was also flawed as a result and that the error was therefore a significant one. 

8. Counsel for the respondent pointed out first that in addition to the findings referred to in the submissions of the applicant on this issue, the Tribunal also made findings that the separation of bank accounts of the applicant and her husband had “been in place from the early days of their marriage”, that “it is not unusual to find married couples with separate bank accounts” and that there were no assets or liabilities of any note.  In these circumstances there was said to be good reason for the Tribunal to attach less weight to the separation of the parties’ bank accounts and the absence of common property in the assessment of whether or not the financial aspects of the relationship indicated that they did not live separately and apart, that question being inherently one of fact for the Tribunal.

9. As to the applicant’s attack on the finding that there was a significant pooling of resources which on balance indicated that the applicant and Mr Azmi did not live separately and apart, it was contended that this was based upon an overall assessment of all of the matters mentioned by the Tribunal, not only upon the fact that they each paid half the rent. It was argued that the question was not whether each member of the household paying his or her share of the rent amounted to a significant pooling of resources within the meaning of s.4(3)(a)(ii), and that the Tribunal did not find that it did, but rather described the payment by each party to the marriage of half of the rent as a pooling of financial resources in respect of the payment of rent.  This finding was said to have been made in the course of the reasoning and not to be such as to reveal any error of law vitiating the decision.  It was also said to be a conclusion that was plainly available on the material before the Tribunal. 

10. Counsel for the respondent submitted that there was nothing in Pelka (to which the Tribunal referred) which held otherwise.  It was pointed out that Pelka was concerned with different facts and different reasoning and that this was not a case where payment by one party of a particular amount in lieu of that person’s share of the rent was relied upon to ground the finding that there was a significant pooling of resources for the purposes of s.4(3)(a)(ii).

11. It was suggested that it was relevant that the dictionary definition of the word “pool” referred to by French J in Pelka at [52] was not limited to “put resources into a common stock or fund” but extended to “share in common” and/or to “combine for the common benefit”, and that the Macquarie Dictionary definition included “a combination of interests, funds etcetera for common advantage” and “to make a common interest of” as well as “to put into a pool, or common stock or fund … according to agreement”.

12. The respondent contended that nothing said by the Tribunal in the relevant part of the decision in relation to financial aspects of the relationship amounted to a misconstruction of s.4(3)(a)(ii).

13. It was also noted that while French J had stated in Pelka at [53] that “cooperation of itself does not take a relationship very far down the path towards characterisation as ‘marriage-like’” his Honour also acknowledged in that paragraph that “cooperative behaviour” could “be taken into account”, explaining that “the matters listed in s.4(3) are not exhaustive”. 

14. Finally the respondent submitted that it was within the authority of the Tribunal, as the finder of fact, to assess the financial aspects of the relationship as it did. 

Reasoning

1. The applicant’s submission is, in effect, that the Tribunal misapplied the law by incorrectly interpreting the reference in s.4(3)(a)(ii) to a “significant pooling of financial resources especially in relation to major financial commitments” as being met where each member of a household pays his or her own share of the rent. 

2. Had the Tribunal in fact found that each member of a household paying his or her share of rent amounted to a “significant pooling of financial resources” (emphasis added) in s.4(3)(a)(ii) without more, that might have demonstrated a misconstruction of s.4(3)(a)(ii) and an error of law. However, it did not do so. First, the relevant finding in respect of rent was more limited. It was that “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 rent” (emphasis added). The Tribunal clearly understood that s.4(3)(a)(ii) was not so limited. It went on to consider all the evidence about financial aspects of the relationship – limited though the evidence was because the financial affairs in issue were “relatively simple”.  The Tribunal did not err in considering, as part of its reasoning process, whether there was any pooling in relation to individual financial resources as part of an overall assessment of all the financial matters in determining whether there was “any significant pooling of financial resources especially in relation to major financial commitments.” 

3. Moreover, where the financial affairs of people are relatively simple, a ‘pooling’ in relation to one aspect of their financial resources that might be of minor significance for persons of greater financial means may assume more significance in the assessment of the financial aspects of that relationship as a whole.

4. Pelka does not assist the applicant.  In that case what was in issue was the relationship between the owner/occupier of a house (Ms Pelka) and Mr Kuhl who also lived in that house.  A question arose as to a payment of rent by Mr Kuhl to Ms Pelka as owner of the house (see Pelka at [4], [10], [12] and [52]).  A contribution by Mr Kuhl to the cost of travel by Ms Pelka (the house owner) instead of payment of such rent was held not to be a “pooling of financial resources”.  In this case, in contrast, Mr Azmi and Mrs Marei each paid half the rent to a third party landlord (the Department of Housing).  It was in the rather different context in Pelka that French J referred to the dictionary definition of pooling and stated that “pooling” plainly involved something more than financial cooperation or separate contributions to different elements of household expense. Here there were joint contributions to one element – the rent. It was open to the Tribunal to find that there was a pooling of financial resources in respect of the payment of rent, just as was it open to it to make the overall finding under s.4(3)(a)(ii), based on all the evidence as to financial aspects of the relationship.

5. Further, the fact that the sharing of the rent in common may be, at the same time, a form of “pooling” and also an arrangement that may be adopted by those not in a marriage-like relationship is not determinative. It merely reinforces that, as s.4(3) states and as French J recognised in Pelka at [46], regard is to be had to “all the circumstances of the relationship”.  While financial arrangements, in particular, may take similar form in all sorts of relationships as the Tribunal recognised “financial matters can never be a determinative factor” in the decision-maker forming an opinion about a relationship (or as to whether there is or is not a state of living separately and apart) between two people (and see Pelka at [46]). 

6. No error of law is established in the manner contended for by the applicant. 

Childcare and nature of the household

1. The next two questions of law in the second further amended notice of appeal relate to the nature of the household and, in particular, child care.  They are:

   (b) Whether on the proper construction of s.4 of the Act the care and protection of the children of the marriage by both parties is a significant essential element of a marital relationship and

   (c) Whether on the proper construction of s.4 of the … Act the Tribunal was bound to consider whether the applicant and Mr Azmi provided care or support to their children jointly and whether they took joint responsibility for the children rather than just consider whether each provided care and support or took responsibility for the children. 

2. Counsel for the applicant pointed out that the Tribunal was obliged to consider the matters listed in s.4(3)(b) under the heading ‘the nature of the household’ (any joint responsibility for providing care or support of the children, the living arrangements of the people and the basis on which responsibility for the housework was distributed) as well as any other relevant factors.

3. The Tribunal findings in relation to the nature of the household were as follows:

   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 (sic) 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 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.

4. It was said that in considering the nature of the household the Tribunal had made an unequivocal statement that “the care and protection of the children of the marriage by both parties is a significant essential element of a marital relationship” and that this was plainly a wrong construction of the provision involving several errors of law.

5. First the applicant argued that the Tribunal wrongly made care and protection of the children a necessary precondition to finding a marital relationship, despite the fact that it is not an essential element of a marital relationship that there are children of the marriage or that both parties provide for the care and protection of any children. 

6. It was said that by purporting to make care and protection of children an essential element of marital relationships, the Tribunal had departed from the well-established principle that all aspects of the relationship must be considered (see, for example, Lambe at 413).

7. The applicant also submitted that the terms of the legislation (in s.4(3)(b)(i)) required the Tribunal to consider “any joint responsibility” for the care and support of children, but that the Tribunal had erred in its construction of this provision by looking instead at whether both parties provided for the care and protection of children.  The relevant issue was said to be not whether both parties fulfilled their obligations (which each may do individually regardless of their relationship with each other) but whether they assumed such a responsibility “jointly”. 

8. These were said to be significant errors because the Tribunal concluded that the nature of the household did not indicate that the applicant and Mr Azmi lived separately and apart.  It was submitted that, read in context, such a conclusion must have been based on the Tribunal’s understanding of the arrangements for care and support of the children as this part of the Tribunal’s reasons was almost exclusively concerned with the support provided to the children, particularly focusing on the support provided by Mr Azmi to his younger son.  Further the conclusion on this issue followed immediately upon the erroneous statement of law making the care and protection of children of the marriage a significant essential element of a marital relationship.  It was argued that as the Tribunal had accepted that the applicant and Mr Azmi had separate living arrangements, absent the issue of child care and support, on a proper construction of the Act the nature of the household would have indicated that the parties to the marriage were living separately and apart.

9. The applicant submitted that the Tribunal’s misconstruction of the Social Security Act led it into further error, in that it subsequently stated that it was satisfied that the applicant and Mr Azmi “individually and collectively do care for the children”.  There was said to be no finding of fact upon which the Tribunal could reach this conclusion, as the entirety of its reasoning in the relevant part of the decision was concerned with the question of whether Mr Azmi, in particular, provided any care at all, not whether the care was provided jointly or individually.  It was suggested that the comments of French J in Pelka in relation to cooperation were equally applicable under s.4(3)(b) in circumstances where the evidence was that the applicant and Mr Azmi cared for the children by completing discrete tasks separately which required little interaction between them.

1. Counsel for the respondent submitted that the Tribunal findings in issue addressed s.4(3)(b) of the Act and that the reasons should be read beneficially, not “concerned with looseness in the language … nor with unhappy phrasing”  and ought “not to be construed minutely and finely with an eye keenly attuned to the perception of error” (MIEA v Wu Shan Liang (1996) 185 CLR 259 at 271 – 272). It was said that the particular statement in issue should be read in the context of the decision as a whole and that on that basis it was clear that the Tribunal saw no particular factual consideration or integer as legally indispensable or conclusive. It was argued that the Tribunal was not saying that there must always be children or that they must always be cared for and protected by the husband and wife for there to be a marriage-like relationship or indeed that the presence of children and their care and protection would always lead to the conclusion that such a relationship exists. Rather, it was said that the Tribunal should be understood as meaning no more than that the care and protection of the children of marriage constituted a “fundamental, basic” part of the relationship or “the essence of the relationship” in this instance, not that such a matter was legally indispensable to a conclusion one way or the other on whether the nature of the household indicated that the applicant and her husband lived separately and apart.

2. Moreover it was argued that the suggestion that the Tribunal did not consider all aspects of the relationship in the sense considered in Lambe should be rejected. The Tribunal had set out the requirement that it was to have regard to all the evidence and other material before it in forming an opinion about the relationship and noted that the matters in s.4(3) were only indicators. It was contended that the Tribunal was entitled to look, as it did, at the way the applicant and her husband discharged their responsibility towards their children to assess the extent to which that tended to reveal whether they were living separately and apart. It was said to be relevant that the Tribunal found not only that the children resided in the same home as the applicant and her husband and that the applicant rendered most of the household services, with Mr Azmi providing significant support to the two children, but also that it found that “the provision of this support is the major factor for their reconciliation and their cohabitation”.  On this basis it was submitted that the Tribunal saw the responsibility towards the children acknowledged and discharged by the actions of both parents in a way that it considered showed their relationship to be marriage-like.  It was noted that Tribunal also found elsewhere in its decision that the applicant and her husband did “share a strong commitment to the care, welfare and support of their two children” and “individually and collectively do care for their children”. 

Reasoning

1. As discussed above, in Pelka French J suggested that the nature of the decision-maker’s exercise under s.4 of the Act was much the same as that required under previous statutory formulas and referred with approval to a number of decisions, including Staunton-Smith which was, unlike Pelka, a case which involved a determination as to whether a married person was living “separately and apart” from her spouse.  Similarly (although expressed as negative) in this case the issue for the Tribunal was whether a married person was “not living separately and apart” from her husband. 

2. There was no suggestion in Pelka that the determination of this issue involved a different approach to the determination of a marriage-like relationship.  French J described Staunton-Smith as addressing “the criterion of marital relationship” (at [39]). Moreover as stated at [36] the relevant statutory distinction for the purpose of calculating the rate of benefits payable is not between those who are married and those who are not, but rather between “those who are single and those who enjoy the benefits of marriage or like relationships.”

3. However, a note of caution was injected by O’Loughlin J in Staunton-Smith in drawing a distinction between the task of assessing whether a married person was living separately and apart from her or his spouse and the assessment of the circumstances of the person in question as if she were allegedly living in a de facto relationship. In that case his Honour observed that instead of inquiring whether the applicant was living separately and apart and looking for indications that might have pointed in that direction (at a time when the Social Security Act provision in issue referred to “a married person who is living separately and apart from … her spouse”) the Tribunal had inquired whether she was living with her husband “on a bona fide domestic basis” (a concept used in the former legislation to define de facto spouse). His Honour observed at 167:

   The Tribunal therefore looked for indications that suggested a ‘living together’ and so placed the wrong emphasis on its inquiry.  In my opinion, the Tribunal erred by adopting a test or standard that was reserved for couples who were allegedly living together in a de facto union.

4. While O’Loughlin J observed that the same facts may establish both the state of not living separately and apart and living together as man and wife on a bona fide domestic basis, the terms were said to be “not interchangeable”. 

5. As the Act now stands it is clear that common factors under s.4(3) are in issue, but the purpose of the inquiry differs. In contrast to the formation of a positive opinion that a relationship is a marriage-like relationship under s.4(2)(b)(iii), in issue in this instance was the Tribunal’s opinion as to a negative – that is that the applicant was not living separately and apart from her spouse on a permanent or indefinite basis (s.4(2)(a)). Nonetheless, just as in relation to the existence of a marriage-like relationship (Pelka at [46]), the fact that a person is or is not living separately and apart on a permanent or indefinite basis is not disclosed solely by any one of the factors in s.4(3). As French J stated, a marriage-like relationship is not disclosed solely by any one of financial co-operation, cohabitation, a sexual relationship, cooperative household arrangements or mutual commitment. Nor is a state of not living separately and apart.

6. It is clear from the opening words of s.4(3) that in forming an opinion about the relationship between two people, either for the purposes of s.(4)(2)(a) or s.4(2)(b) the decision-maker “is to have regard to all the circumstances of the relationship.” While on the proper construction of s.4 a particular factor may be regarded as significant in all the circumstances of the relationship (whether weighing in favour of or against formation of the opinion required under s.4(2)), no one factor can be said to be essential to a marriage-like relationship or to a conclusion that a couple are, or are not, living separately and apart. The fact that s.4(3) mandates regard being had to each of the factors listed does not warrant a conclusion that, as a matter of law, any one factor is necessary or “essential” to a particular conclusion.

7. To treat any one element as “essential” is to do more than attribute significance or weight to a factor in a particular relationship (which would be a matter for the Tribunal). In forming an opinion under s.4(2)(a) for the purposes of a determination that a person is a member of a couple, just as French J stated in Pelka in relation to a marriage-like relationship, a decision-maker must have regard to the relationship as a whole, not limited by, but including the factors listed in s.4(3), (as explained at [46]) and “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 that weigh against … and those which weigh in favour ..” of, in the case of a marriage, an opinion that there is a relationship in which the person in question is not living separately and apart from his or her spouse on a permanent or indefinite basis.

8. In this case, the Tribunal stated (at para [29]:

   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.

9. On its face, this statement clearly elevates a relevant indicator to the status of an indispensable precondition to the forming of an opinion as to whether there was a marital relationship (that is, between a husband and wife) in considering whether or not two people who are married are not living separately and apart. 

10. In considering the reasons of an administrative decision-maker, a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons (Collector of Customs v Pozzolanic (1993) 43 FCR 280 cited in MIEA v Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ) and that “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to error”.  As the joint judgment in Wu Shan Liang acknowledged, these propositions “recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be sanitised by over-zealous judicial review” (at 272) and as such are relevant to the fact that judicial review must not turn into a reconsideration of the merits. 

11. In this case the issue is not the merits of the decision, but rather the question of law in issue and whether in making this statement the Tribunal made an error of law.  It was acknowledged by counsel for the respondent that if the Tribunal was saying that the care and protection of children by both parties was a significant essential element of a marital relationship in the sense of legally indispensable that would be an error of law. 

12. To determine whether this was what the Tribunal was saying, it is necessary to consider precisely what was said, the context in which it occurred and whether the Tribunal applied the correct test and had regard to matters it must address (Zhang v MIMIA [2005] FCAFC 30 at [14]). What is critical in this instance is whether the Tribunal misconstrued s.4 of the Act having regard to its reasons as a whole, the statutory framework and the nature of the decision. The Tribunal set out s.4. However routine citation of statutory provisions does not of itself demonstrate that regard has been had to particular matters (Zhang at [14]). The Tribunal stated (correctly), that the critical issue was whether the applicant was a member of a couple. It referred to the applicable paragraph in s.4(2). Initially the Tribunal set out the evidence, including the fact that the applicant and Mr Azmi had two sons, the psychological and medical problems suffered by her younger son and the resolution of such problems after the applicant and the children resumed living in the same house as Mr Azmi. It also detailed evidence from the applicant about Mr Azmi’s care for the children including the fact that after Mr Azmi came home he would play with the children, read them Bible stories and help them with their homework and that he was involved in weekend activities with the children and taking them to Sunday school. The Tribunal recorded the applicant’s stated intention to remain in the current situation for the sake of the children. It also set out evidence that she would not necessarily consult her husband about a crisis affecting one of the children and that she did not consider herself to be in a marriage-like situation and that she and her husband were “putting up with the arrangements that were in place” solely for the benefit of the children.

13. Mr Azmi is recorded as having told the Tribunal the priest had told him if his wife wanted to come back he should “accept this for the sake of the children” and that this was what had happened.  He described his activities separate from his wife and his activities, outings and church attendance with the children. 

14. In its “consideration” the Tribunal correctly identified the s.4(2)(a) issue of whether the applicant and Mr Azmi were living separately and apart on a permanent or indefinite basis. It stated that “s.4(3) provides for the Tribunal in its consideration of this issue to include consideration of matters such as financial aspects, nature of household, social aspects, sexual relationship and nature of the commitment of each person in the marriage” (emphasis added) and that these particular matters were to be treated only as indicators and that the Tribunal was to have regard to all the evidence.

15. This statement of general principle is relevant to a consideration of whether the Tribunal erred in its later statement about an “essential” element of a marital relationship. In that respect, insofar as it suggests that the Tribunal is not obliged to have regard to each of the matters in the paragraphs of s.4(3) or to the factors listed under each heading in s.4(3) that, in itself, amounts to a misconception of the law (see Pelka at [46]).  The Tribunal “must” have regard to such matters and factors. 

16. If the Tribunal had in fact gone on to apply the correct test despite the lack of clarity in this statement of general principle, the strictures in Wu as to affording the reasons a beneficial construction would be apposite.  However in fact this possible misstatement of the law is a pointer to the Tribunal’s subsequent error. 

17. The Tribunal then addressed factors by reference to the headings in the paragraphs of s.4(3), but when it came to the issue of “the nature of the household”, it cannot be said that the finding that “the care and protection of the children of the marriage by both parties is a significant essential element of a marital relationship” is simply a reference to an ‘indicator’ in s.4(3)(b). The care and protection of children by both parties is not a factor listed in s.4(3)(b) or elsewhere in s.4(3). Section 4(3)(b)(i) addresses a different issue: “any joint responsibility for providing care or support of children”. While it is undoubtedly open to a decision-maker to consider care and protection of the children of the marriage by both parties as an indicator in addition to the s.4(3) factors, there is nothing in the Tribunal reasons that indicates that that was being done by the Tribunal in this case and that the reference to a “significant essential element of a marital relationship” was mere looseness of language. Rather, contrary to s.4, the Tribunal proceeded on the basis that there was an ‘essential’ element of a marital relationship.

18. As a matter of construction, it may not be that the Tribunal was stating that children are themselves essential in every marital relationship (a beneficial reading would involve a recognition that the Tribunal was addressing the situation where there were in fact children of the marriage), nonetheless the Tribunal explicitly made the care and protection of any children of the marriage an “essential” element of a marital relationship”. 

19. In all the circumstances I cannot be satisfied that, despite this statement, the Tribunal in fact applied the correct test, a test that requires consideration of all elements, and in which no one element is a necessary pre-condition.  This is not a case in which an inference as to use of an incorrect test was sought to be drawn simply from the approach of the Tribunal to the weight given to various factors (cf Wu at 280). Rather it made a clear statement which (in contrast to the position in Wu) was “necessarily inconsistent with the correct application” of the test in s.4 of the Act (cf Wu at [281]).

20. Further, while it cannot be said that the Tribunal was looking for indicators that suggested a marriage-like relationship, rather than for indicators as to whether the applicant and her husband lived separately and apart in the sense discussed in Staunton-Smith that the Tribunal gave the element of care for the children by both parties to the marriage the status of a necessary precondition to a marital relationship is clear from the fact that it did not merely take the presence of this factor into account in relation to whether the matters relating to the nature of the household pointed to the parties not living separately and apart (which, without more might indicate that the reference to “essential” was mere “looseness of language” or “unhappy phrasing”).  The Tribunal went on to find that even though mutual commitment was “lacking” there was a strong commitment to and individual and collective care for the children which the parties intended to continue.  It is clear from the Tribunal’s reasoning that the care and protection of the children by both partners to the marriage was accorded a significance which reflected the Tribunal’s view that this was an “essential” element of a marital relationship. 

21. The erroneous statement of law was significant, given its importance not only to the conclusion about the nature of the household but more generally to the conclusion about the relationship.  As submitted for the applicant, the Tribunal’s conclusion that the nature of the household did not indicate that the applicant and Mr Azmi lived separately and apart, read in context must have been based on the Tribunal’s understanding of the arrangements for care or support of the children.  This was the main issue addressed in the reasoning in the paragraph relating to nature of the household and was set out immediately preceding the conclusion.  While that conclusion referred to “the whole family situation” (as against the separate living arrangements) it is clear that the issue of child care and support was regarded as paramount.  As set out above this error was compounded by the manner in which the Tribunal reached its ultimate conclusion. 

22. The second question raised in relation to s.4(3)(b) is whether the Tribunal was obliged to consider whether there was “joint responsibility” as specified in s.4(3)(b)(i).

23. Under s.4(3) of the Act the Tribunal is required to have regard to “all the circumstances of the relationship” including the nature of the household. However, s.4(3)(b)(i) refers to “any joint responsibility…” This is a recognition that there may not be such joint responsibility in a particular case (see s.4(3)(a) to the same effect in relation to particular financial matters). This factor must be addressed, the Tribunal was entitled to look at the way Mrs Marei and her husband discharged their responsibilities to their children to assess the extent to which that tended to reveal “any” joint responsibility as relevant to the opinion as to whether they were living separately and apart.

24. While not in the paragraph of the reasons which began by referring to the nature of the household, the Tribunal found that it was satisfied that the applicant and Mr Azmi “individually and collectively do care for their children” (emphasis added) apparently on the basis of a shared “strong commitment” rather than any interaction in respect of the children’s affairs (as the Tribunal accepted the applicant’s evidence in this respect was confused because of difficulties in clearly understanding questions put through an interpreter at the Tribunal hearing). Such a finding sufficiently addressed s.4(3)(b)(i) and the evidence before the Tribunal but the error that the Tribunal made in this respect was to treat the care and protection of the children by both parties as an essential element of a marital relationship as discussed above.

25. On the proper construction of s.4 of the Act the care and protection of the children of the marriage by both parties cannot be said to be a “significant essential element of a marital relationship”.  The Tribunal erred in law in holding that it was essential. 

The nature of the commitment

1. The next question relates to the nature of the people’s commitment to each other. It is whether on the proper construction of s.4, in deciding whether the applicant and Mr Azmi were members of a couple, the Tribunal was bound to take into account:

   i)(i)      the nature of their commitment to each other (rather than the nature of each to their children);

   ii)(ii)    the subjective beliefs of each as to the nature of their relationship;

   iii)(iii)   the reasons for their household arrangements.

1. This question relates to three different issues.  The third aspect (reasons for their household arrangements) was addressed in conjunction with a proposed additional question.  It is convenient to deal with each aspect of this question separately. 

2. First, the applicant submitted that the Tribunal was bound to consider the nature of the parties’ commitment to each other, if any, rather than the commitment of each other to their children.  It was suggested that in this case the Tribunal had instead focused on the strong commitment of each to the care, welfare and support of the two children.  Reference was made to Re Donald & Director General of Social Security (1983) 5 ALN 185 in which the Tribunal had said that “The essential characteristic of marital relationship is still seen, I believe, as the commitment of each to the other to a greater extent than, and in a manner qualitively different from, the commitment of either to anyone else” (emphasis added).  It was also pointed out that in Roberts v Secretary, Department of Social Security (1987) 12 ALD 723 the Tribunal had considered circumstances where there was commitment by each person to their child, but observed that this was “no substitute for the mutual commitment being the essential characteristic of the marital relationship nor does it impart to that relationship a quality it does not have” (at [7] – [8]) (and see also VYV v Secretary, Department of Social Security [1996] AAT 10723; Secretary, Department of Family and Community Services v Mehanna (2005) 87 ALD 387 at [53]; and cf Gerrie v Secretary, Department of Family and Community Services [2003] AATA 1188 at [11]).

3. It was contended that in focusing on the commitment the applicant and her husband had to the children, rather than giving proper consideration to the nature of their commitment, if any, to each other the Tribunal had misconstrued s.4(3)(e) and/or had failed to take into account a consideration that it was bound to take into account.

4. The respondent submitted that the Tribunal did consider that the applicant and her husband had a commitment to each other and found that it was “clearly is lacking” (although it did not find that either party had a commitment of that nature to anyone else).  However it was said that the Tribunal found this factor to be outweighed by other factors, including, but not limited to, the fact that the applicant and her husband had “resumed living together” and “do share a strong commitment to the care, welfare and support of their two children”.  The Tribunal also found that the applicant and her husband did “intend to continue residing together and caring for their children and that, difficult as it may be, they still wished to project an image to the outside world of togetherness”.  Thus it was said that the Tribunal accepted that the relationship between the applicant and her husband was an unhappy one, but on balance was of the opinion they were not living separately and apart on a permanent or indefinite basis. 

Reasoning

1. The Tribunal was bound to take into account the nature of the commitment of each of the parties to the marriage (under s.4(3)(e)) as part of all the circumstances of the relationship. That does not mean it could not also have regard to other factors, such as the nature of their commitment to their children and other aspects of their relationship.

2. It is clear that the Tribunal was of the view that the fact that the commitment to each other  “clearly is lacking”, the entrenched difficulties in the interpersonal relationship and animosity between the applicant and Mr Azmi’s family were indicators which weighed in the balance against a conclusion that the applicant was not living separately and apart from her husband.  However it was open to the Tribunal to weigh such factors against matters pointing in a different direction in relation to the issue before the Tribunal (such as the parties’ commitment to care of the children, the fact they had resumed living together, their future intentions to continue to reside together and their wish to project an image to the outside world of togetherness). 

3. While the Tribunal found that the fact that the commitment to each other was lacking was outweighed by other factors, that is, under s.4 as it is drafted, a matter for the Tribunal. It was not necessary for the Tribunal to expressly refer to and further grapple with all of the evidence or other material that it had previously mentioned in support of its conclusion that the commitment was “lacking”, provided that it had regard to all of the matters listed in s.4(3)(e)(i) to (iv) as discussed further below. I note however, that the Tribunal did not go so far as to say that there was no commitment at all. This is apparent from its conclusion in relation to the “image of togetherness” the couple wished to project and its finding, not that there was no relationship, but rather that it was “an unhappy one”.  

4. The other decisions of the AAT cited for the applicant indicate factual matters taken into account in dealing with the issue of commitment. They do not establish that the Tribunal erred in its assessment of the relevant factors in this case. Moreover, to the extent Tribunal decisions that predated the introduction of s.4 of the Social Security Act in its present form imply any acceptance of a requirement that there be a ‘strong’ commitment to each other, it is notable that under the Act in its present form the ‘nature’ of the people’s commitment to each other is merely an indicator for the Tribunal to have regard to and weigh as part of all the circumstances in determining whether a person is not living separately and apart from a spouse. 

Subjective beliefs

1. While the answer to the first part of this question does not lead to a conclusion that the Tribunal fell into error, as discussed above the Act requires that the weighing of factors relevant to the issue of living separately and apart not proceed on the basis that any one factor is an essential pre-condition or determinative and also that the Tribunal take into account all of the listed factors.    

2. The applicant submitted that the Tribunal was bound to take into account the subjective beliefs of the parties to the marriage as to the nature of their relationship. It was said that while s.4(3)(e) makes it mandatory for the Tribunal to consider “whether the people see their relationship as a marriage-like relationship”, in this case the Tribunal did not consider the subjective beliefs of the parties as to the nature of their relationship, contrary to the suggestion in Staunton-Smith that this issue was important.  In Staunton-Smith the Tribunal had failed to comment on the subjective views of the parties. The Court found (at 170) that this was contrary to the need to consider the relationship in its totality and to make findings on material questions of fact (at 171).

3. It was submitted that there was evidence before the Tribunal in this case that the applicant did not consider herself to be in a marriage-like situation, that both she and Mr Azmi were “putting up with the arrangements that were in place, solely for the benefit of the children, and particularly her younger son who had been so badly affected by the separation” and that Mr Azmi’s evidence at the Tribunal hearing was to the same effect.  However it was said that no finding was made with respect to this evidence.  It was not mentioned in the section of the decision headed “Consideration”.  It was argued that the Tribunal made an error of law in that it failed to consider a factor it was bound to take into account. 

4. Counsel for the respondent submitted that, contrary to the applicant’s submissions, the Tribunal did consider the issue of subjective beliefs of each party to the marriage. It was noted that the Tribunal referred to s.4(3)(e) and set out the evidence of the applicant that she did not consider herself to be in a marriage-like situation. It also described the evidence of Mr Azmi in its reasons for decision, including the evidence that his family “were not aware of the extent of the separation between himself and his wife and only Father Suriel knew the true circumstances”.  This, at least impliedly, was said to acknowledge that Mr Azmi saw himself as separated from his wife. 

Reasoning

1. Under s.4(3) of the Act it is necessary for the decision-maker to take into account aspect of the parties subjective beliefs in considering the nature of the people’s commitment to each other, insofar as s.4(3)(e) refers to “whether the people see their relationship as a marriage-like relationship” and whether they “consider that their relationship is likely to continue indefinitely.”

2. The latter of these matters was addressed by the Tribunal in the ‘consideration’ part of its decision, in its finding that on their own evidence the applicant and Mr Azmi “intend to continue residing together and caring for their children” (albeit that this finding reflects the pre-eminence given by the Tribunal to the care of children). 

3. However this finding did not address the issue of whether the parties to the marriage “see their relationship as a marriage-like relationship”.  Further, the subsequent finding “that difficult as it may be, they still wish to project an image to the outside world of togetherness” addresses not how the parties saw their relationship but how they wished others (in the context of the beliefs of those in their community) to see their situation. 

4. The subjective beliefs or perceptions of the parties to the marriage about the nature of their relationship, in particular whether they see their relationship as a marriage like-relationship, is a consideration made mandatorily relevant by s.4(3) (as discussed in Pelka at [46]). The Tribunal must have regard to each of the factors listed under each heading in s.4(3).

5. While the Tribunal did set out in its account of the evidence, Mrs Marei’s evidence that she did not consider herself to be in a marriage-like situation and Mr Azmi’s evidence (which the respondent does not contest impliedly acknowledged that he saw himself as separated from his wife), this evidence as to the parties’ beliefs as to whether they saw their relationship as a marriage-like relationship was not dealt with in the Tribunal consideration (see Staunton-Smith at 170 – 171). Such matters are not only relevant as part of all the circumstances, they are referred to in s.4(3). The Tribunal made no finding as to whether the parties to the marriage saw their relationship as a marriage-like relationship, despite the existence of this evidence.

6. The parties’ beliefs in this respect are indicators that may weigh for or against a conclusion that they were not living separately and apart. By failing to consider these matters the Tribunal erred. It did not simply fail to refer to an item of evidence. It failed to have regard to a factor it was bound to take into account under s.4 of the Act.

The reasons for the household

1. The applicant submitted that the Tribunal was bound to consider the reasons for the household and failed to do so. While this is not a matter listed in s.4(3), in Staunton-Smith O’Loughlin J suggested that it was not sufficient merely to note that a couple was sharing accommodation or that one was financially dependent on the other but that one must “delve deeper” to find the reasons for such arrangements (at 173).  It was submitted that the reasons for the household are an important consideration that must be looked at in relation to the arrangements as a whole and hence that this was a factor the Tribunal must take into account. 

2. Counsel for the applicant sought leave to further amend the notice of appeal to add an additional question relating to this aspect of the Tribunal’s reasons as follows:

   Whether, on the proper construction of s.4 of the Social Security Act 1991, the reason for the household arrangements for the applicant and Mr Azmi indicated that they were living separately and apart on a permanent or indefinite basis and/or were a factor that should have been taken into account as weighing against a conclusion that they were not living separately and apart on a permanent or indefinite basis.

3. The respondent did not consent to the grant of leave to amend the notice of appeal, as it was submitted that there was no merit in the proposed ground.  However the substance of the ground was addressed by both parties and it was acknowledged that the respondent was not in any way prejudiced by the amendment.  The respondent did not suggest that the proposed additional question was “impermissibly drawn in a way calculated to cause this Court to review the decision of the Tribunal rather than to answer stated questions of law” (Australian Securities & Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 at [46] per Branson J with whom Jacobson and Bennett JJ agreed).

4. In these circumstances I consider that the applicant should be granted leave to amend the notice of appeal (see Order 53 Rule 5 of the Federal Court Rules and Rule 1.05(2) of the Federal Magistrates Court Rules). However, for the reasons set out below, the proposed amendment does not assist the applicant’s case.

5. It was acknowledged for the applicant that the Tribunal did refer to the evidence of both parties to the marriage that the provision of support by Mr Azmi to his children (and particularly the younger son) was the major reason for the cohabitation, but submitted that this factor appeared only to have been taken into account in relation to the provision of care or support to the children and that even then it seemed to have been weighed in favour of the finding that there was a marital relationship rather than the other way around.  It was said that, as acknowledged in Pelka, consideration must be given to those factors which weigh against finding there is a marital relationship as well as those which weigh in favour of it. 

6. The respondent submitted that it was incorrect to say that the Tribunal failed to consider the reasons for the household arrangements, as it was satisfied that the applicant and her husband intended to reside together caring for the children and that, difficult as it may be, they wished to project an image to the outside world that they were together. The Tribunal had also found that the provision of support to the two children, particularly the younger son, was the major factor for their reconciliation and cohabitation. Moreover it was said that “the reasons for the household arrangements” was not a factor listed in s.4(3) and hence not a consideration that the legislation required to be taken into account.

7. It was said that it was a matter for the Tribunal to assess whether the reasons for the household arrangements were relevant and, if so, the weight to be given to this factor. 

Reasoning

1. The “reasons for household arrangements” is not a factor listed in s.4(3). Insofar as Staunton-Smith is said to require express consideration of this factor, that decision did not involve consideration of s.4(3). In any event, the Tribunal did consider the reasons for cohabitation as part of all the circumstances, as submitted for the respondent. In particular it found that the provision of support to the two children was the major factor for the reconciliation and cohabitation.

2. The proposed amendment to the notice of appeal does not assist the applicant’s case.  It is apparent that the Tribunal regarded the reasons for the household arrangements as an indicator that weighed against a conclusion that the applicant was not living separately and apart from her husband.  It cannot however be said that, as a matter of law, the reasons for household arrangements must be taken as an indicator one way or another.  Rather the weight and the significance given to particular household arrangements are questions of fact for the Tribunal in the particular case.  Consistent with what was said in Staunton-Smith at 173 – 174, the Tribunal’s approach to the reasons for household arrangements is not such that it can be said that in this respect the decision was manifestly unreasonable.

Relevance of children to financial aspects of the relationship

1. The next question is whether, on the proper construction of s.4 of the Act, in considering the financial aspects of the relationship in accordance with s.4(3)(a) the Tribunal was bound to take into account that the applicant and Mr Azmi had two dependent children.

2. Reference was made to the decision of the Tribunal in Secretary, Department of Family and Community Service v WAP [2000] AATA 7 in which it was suggested that it would not necessarily be unusual for parties to a marriage to rely on their own financial means and share expenses and that “It is easy to understand in a number of circumstances where both partners of the relationship would insist on financial independence and this may persist at least until there are dependent children of the partnership”.  It was also noted that in Lynam at 131 Fitzgerald J made the point that:

   Financial arrangements cannot be taken in isolation and considered of particular importance in determining the nature of the relationship.  Their materiality like each of the other elements of the relationship, stems from the impact which they have as part of an overall situation.  Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other.  What must be looked at is the composite picture.  Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost invariably be productive of error. (Also see Staunton-Smith at 174)

3. The applicant submitted that, putting aside the issue of rent, the evidence was that the finances of the applicant and Mr Azmi were almost entirely separate.  While consistent with the reasoning in WAP this would usually assume greater significance where there were dependent children, it was said that it was impossible to evaluate the significance of separate finances in terms of whether the parties were in a marital relationship or not without taking into account this essential context.  Hence the Tribunal was bound to take this factor into account in looking at the financial aspects of the relationship, as this could be properly implied from the subject matter and purpose of the statute consistent with the principles in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39 – 40. It was contended that the Tribunal had erred in looking at the finances in isolation and failing to appreciate the way in which the significance of the parties’ separate finances was impacted upon by the nature of the family. Similarly, in Staunton-Smith the Tribunal’s failure to mention the supportive conduct of the wife during a separation went beyond a question of weight, because had that evidence been accepted it might have qualified as evidence supporting a finding on a material question of fact, because the supportive relationship that existed after the wife’s return might have had less significance. 

4. It was also said that the failure of the Tribunal to consider the fact that the parties to the marriage had dependent children may be characterised as part of its failure to take into account the reasons for the parties’ arrangements.  It was submitted that the Tribunal should have looked at why the applicant and Mr Azmi had separate finances and any good reason why they would combine their finances to some degree if they were in a marital relationship.  The Tribunal was said to have failed to take this factor into account and failed to ask why they kept their finances separate despite the presence of two dependent children who were part of the household. 

5. It was submitted for the respondent that it had not been shown that the Tribunal ignored any factor it was required by the legislation to have considered and that the applicant sought to cavil with the merits of the Tribunal decision. 

Reasoning

1. The Tribunal’s reasons must be read as a whole. It was plainly aware of the structure of the household and the fact there were two children. Indeed, in the paragraph in which it discussed financial aspects of the relationship between the applicant and Mr Azmi (consistent with the requirements of s.4(3)(a)), the Tribunal referred to the evidence that the applicant provided for household and other day-to-day expenses and that Mr Azmi provided pocket money to the children and ‘on occasion’ met some school expenses. Insofar as the applicant cavils with the Tribunal’s approach to the fact of separate bank accounts, the Tribunal did address the significance of this factor.

2. The fact that in different circumstances another Tribunal found it “easy to understand” that in some circumstances parties to a relationship would insist on financial independence and that this “may persist at least until there are dependent children of the partnership” does not mean that in the particular circumstances before it the Tribunal either failed to consider or failed to “delve deeper” to find the reasons for the financial arrangements (Staunton-Smith at 173 per O’Loughlin J).

3. The Tribunal noted the pooling of rent, the joint use of a car to which both had contributed and then contributions to household and day-to-day expenses, including express reference to expenses of the children.  It did not simply “note” that there was financial separation of the parties’ bank accounts.  It went on to consider the reasons for such arrangements, having regard to the fact that such separation “had been in place from the early days of the marriage and it is not unusual to find married couples with separate bank accounts.”  It also referred to the simplicity of the financial affairs in issue.  

4. As Fitzgerald J found in Lynam at 131, financial matters cannot be taken in isolation and cannot be determinative. The Tribunal understood this. It did not take such matters in isolation without regard to the family structure, in particular the two children. Nor did the Tribunal fail to make findings in its reasons on material questions of fact such that the decision was manifestly unreasonable in the manner considered in Staunton-Smith (at 174).

5. On the proper construction of s.4 the Tribunal was required to have regard to “all the circumstances of the relationship” including in particular, financial aspects of the relationship and inter alia, the nature of the household which in this instance included two dependent children.  As part of a consideration of the financial aspects of the relationship it had to have regard to “the basis of any sharing of day-to-day expenses”.  In this case, where there were dependent children, household and day-to-day expenses were addressed by the Tribunal, including the expenses relating to the children.   

The starting point for the Tribunal’s consideration.

1. The final question posed by the applicant is whether on the proper construction of s.4 of the Social Security Act 1991 in deciding whether the applicant and Mr Azmi were members of a couple the Tribunal was bound to take into account and/or as its starting point that they had lived separately and apart during the period of separation.

2. It was pointed out that it was held in Main v Main (1949) 78 CLR 636 that for a couple to be living separately and apart required both a physical separation and a destruction of the marital relationship or consortium vitae.  However it was said that in the present case there was evidence that the applicant and Mr Azmi had lived in separate residences between November 2003 and May 2005 and that Centrelink accepted they were separated during this period.  Hence there was said to have been both physical separation and destruction of the marital relationship from late 2003.  On this basis was submitted that once a couple lived separately and apart that condition was present unless and until there was a substantial resumption of the marital state brought about by resuming cohabitation on other than a temporary basis.  Reference was made to In the Marriage of Bell [1979] FLR 216 and Macrae v Macrae (1967) 1 NSWR 745, cases which considered whether persons met the prerequisites for divorce, although it was acknowledged that the question in this case was the construction of the Social Security Act. 

3. It was also said that the concept of a resumption of cohabitation meant more than living in the same house and that it referred to setting up a matrimonial home together, that there must be an intention on the part of both to do so (Bell at 218 – 219 following Mummery v Mummery [1942] P 107) and that nothing less would put an end to the state of living separately and apart once established (Macrae at 748 per Herron CJ and at 755 per Sugarman JA).

4. It was submitted that in these circumstances the Department bore the onus of establishing that the relationship had been resumed, in the sense that the couple had resumed physical cohabitation and the marital relationship (consortium vitae) in accordance with Main v Main or that, at the least, the starting point for the enquiry must be that there was no marital relationship while they were living apart.  It was submitted that the Tribunal did not take that as a starting point and nor did it examine whether there was an intention on the part of both parties to resume the relationship in accordance with Bell.  It was argued that in failing to do so the Tribunal misconstrued the legislation and therefore committed an error of law.

5. Counsel for the respondent argued that this submission misconceived the task the Tribunal faced.  It was said that the obligation of the Tribunal was to reach what it considered to be the correct and preferable decision as to whether the applicant was a member of a couple for the purposes of the Act at the particular time under consideration.  It was submitted that this was what the Tribunal did and that there was no onus of proof (see McDonald v Director General of Social Security (1984) 1 FCR 354 at 357 per Woodward J, 366 per Northrop J and 368 – 369 per Jenkinson J). The Tribunal was said to be plainly satisfied as to the conclusion that it reached. It was submitted that this was not a decision which depended on the existence or otherwise of any onus of proof.

Reasoning

1. Care must be taken in considering the application of cases such as Main v Main, In the Marriage of Bell and Macrae v Macrae addressing the very different context of whether a marriage has irretrievably broken down, or whether parties “have lived” separately and apart for a specified time or whether there is a reasonable likelihood of cohabitation being resumed.  In that context a resumption of cohabitation may be critical. 

2. In Main v Main the High Court was considering the very different situation of a couple who were physically separated because the husband lived in a nursing home.  It was in that context that Latham CJ, Rich and Dixon JJ held that in the context of a ground for divorce which required that parties “have lived separately and apart for a period of not less than five years” the words “separately and apart” showed “that physical separation is necessary and that it is not enough that there has been a destruction of the consortium vitae or matrimonial relationship while the spouses dwell under the same roof”.  Their Honours were also of the view that a temporary physical absence would not amount to living separately although the couple were living apart (at 642 – 3).  In Macrae v Macrae Herron CJ considered the fact that parties had not resumed cohabitation (“in the sense of living under the same roof” (at 748)) in the context of their failure to resume cohabitation after a decree for restitution of conjugal rights (at 749).  This was relevant to a determination of whether the parties had lived separately and apart for a continuous period of not less than five years. 

3. In the Marriage of Bell was concerned with whether casual and intermittent acts of sexual intercourse amounted to a resumption of cohabitation such as to “negate the condition” of living separately and apart after it was established that the parties to a marriage had physically separated.  Baker J did state however “Obviously a resumption of cohabitation under the one roof would negate the condition providing such resumption of cohabitation was something more than on a casual or temporary basis” (at 218).    

4. It was in the context of considering whether the parties had lived separately and apart for a continuous period that Watson J stated in In the Marriage of Todd (no.2) (1976) 9 ALR 401 (cited in Bell at 218) that:

   once the necessary period of separation [that is the statutory requirement of 12 months continuous separation immediately preceding the application for dissolution of marriage under the Family Law Act] has been established, the decree for dissolution should be made unless the Court is satisfied that there is a reasonable likelihood of cohabitation being resumed. The onus of establishing such likelihood is on the spouse who asserts it.

5. That is, however, a very different context to the formation of an opinion by an administrative decision-maker as to whether, at the time of the decision, a person is not living separately and apart from his or her spouse on a permanent or indefinite basis. 

6. Further, as O’Loughlin J pointed out in Staunton-Smith, while some assistance can be gained by considering cases decided under the Family Law Act 1975 (Cth) when considering what amounts to living separately and apart “care must be exercised” (at 175) as the Family Court is considering “whether a particular marital union has ceased to exist”, not “whether a marital or quasi-marital union does, in fact, exist.” (ibid).

7. Moreover, as stated in McDonald, the notion of a legal onus of proof is not applicable in the context of such administrative decision-making. The Tribunal is required, in effect, to put itself in the position of the administrative decision-maker (see s.43(1) of the Administrative Appeals Tribunal Act 1975 (Cth)). The relevant provisions in the Social Security Act do not “place a requirement or onus on one or other of the parties … to establish a particular state of facts on which the … decision would be based”, (McDonald at 357 per Woodward J). Section 500 of the Social Security Act simply provides that a person is qualified for parenting payment if certain conditions are satisfied (relevantly that the person has at least one child (a “PP child” as defined elsewhere in the Act)). Under s.503 a person’s parenting payment rate is worked out using either the single rate calculator if the person is not a member of a couple or the partnered rate calculator if the person is a member of a couple (as defined in s.4). The Act does not create a legal onus to prove all relevant aspects of a claim for parenting payment at a particular rate.

8. Further, the Social Security Act does not impose an evidential onus on the Department to establish that a relationship has resumed post-separation as contended for the applicant.  As Woodward J stated in McDonald at 358:

   There can be no evidential onus of proof in proceedings before the AAT unless the relevant legislation provides for it

9. In McDonald it had been argued that once a pension had been granted there was an evidential onus on the Director-General of Social Security (the primary decision-maker) to satisfy himself (or on appeal that the AAT satisfy itself) of changed circumstances before cancelling the pension. That argument was rejected by the Full Court of the Federal Court. In the circumstances of this case, there is nothing in the relevant legislation to provide for such an onus of proof. As Northrop J stated at 366:

   If a change in circumstances occurs, it is unreal to suggest that the [decision-maker] has an onus of proof whether evidentiary or not, to be satisfied before varying a person’s entitlement.  The ultimate question is whether the person is qualified to receive the pension and, if so, at what rate.  These questions must be decided after a consideration of all the material before the [decision-maker].

10. Northrop J suggested that similar principles applied to proceedings before the AAT, which is not bound by the rules of evidence and where, while as a matter of convenience the Director-General (now the Secretary of the Department) normally appears to assist the Tribunal, there are no adversary parties (at 366 and also see Jenkinson J at 369). 

11. In these circumstances it cannot be said the fact that that there was no marital relationship in the past is a necessary “starting point” for the inquiry, given that the nature of the inquiry to be undertaken by the Tribunal under the Social Security Act relates to a person’s present entitlement to a particular rate of payment depending on his or her present status as a member of a couple or not a member of a couple.  The fact of past physical separation is part of all the circumstances, that was recognised by the Tribunal in this instance in its consideration of the fact of and reasons for resumption of cohabitation after the past separation (during which time the applicant was paid parenting payment at the single rate). 

Conclusion

1. In the result it is apparent that the Tribunal misapplied the law in finding that the care and protection of the children of the marriage was a significant “essential” element of a marital relationship and that it failed to consider all the factors it was bound to take into account under s.4 of the Act. In this case, where there were factors pointing in different directions on the question of whether Ms Marei and Mr Azmi were not living separately and apart, it cannot be determined whether the Tribunal would have come to the same conclusion on a proper interpretation of s.4 of the Act. Hence the appeal should be upheld, the Tribunal decision set aside and the matter remitted for further consideration in accordance with the law. The respondent should meet the applicant’s costs of the appeal.

I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  13 April 2007