Mehanna; Secretary, Department of Family and Community Services
[2005] AATA 575
•16 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 575
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1510
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Applicant
And
IKLAS MEHANNA
Respondent
DECISION
Tribunal Ms N Bell, Senior Member Date16 June 2005
PlaceSydney
Decision The decision under review is affirmed.
...........................................
Ms N Bell
Senior Member
SOCIAL SECURITY – Marriage-Like Relationship – Respondent Still Married – Numerous Short Periods of Reconciliation – Children Conceived During Periods of Reconciliation – Respondent Found to be Living Separately and Apart from Husband.
Social Security Act 1991, section 4(3)
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Main v Main [1949] 78 CLR 636
Saunders and Saunders (1976) 12 ALR 283
Macrae v Macrae [1967] 1 NSWR 745
Bell v Bell (1979)34FLR529n
REASONS FOR DECISION
16 June 2005 Ms N Bell, Senior Member 1.Mrs Iklas Mehanna and her husband, Ibrahim Mehanna married in Lebanon on 14 September 1993. Mrs Mehanna was born in Australia and Mr Mehanna came to Australia in February 1994. Their first child was born in July 1994.
2.In March 1995 Mrs Mehanna claimed and was granted sole parent pension after advising Centrelink that Mr Mehanna had left the granny flat attached to Mrs Mehanna’s parents’ house at 8 Booth Street, Arncliffe, where they had been living. Mrs Mehanna continued to receive sole parent pension, or its equivalent, through a review by a Centrelink officer in July 1996 and the births of Mr and Mrs Mehanna’s other three children in March 1996, May 1998 and December 2002.
3.On 8 May 2003, Centrelink cancelled Mrs Mehanna’s Parenting Payment, as the payment then was, on the basis that Mrs Mehanna was considered to be a member of a couple. The decision was reviewed internally and affirmed but later set aside by the Social Security Appeals Tribunal on the basis that Mrs Mehanna was considered by that tribunal to be living separately and apart from Mr Mehanna on a permanent or indefinite basis. This application is brought by the Secretary of the Department of Family and Community Services for a review of the Social Security Appeals Tribunal’s decision.
Issues
4.The central issue in this application is whether Mrs Mehanna, as at 8 May 2003, was living separately and apart from Mr Mehanna on a permanent or indefinite basis. In essence, the Secretary contends that a range of factors, including the conception and birth of 3 children, continuing co-operation in relation to the children, the continued use by Mr Mehanna of Mrs Mehanna’s residential address as an address for his business, and an enduring desire for reconciliation by Mr and Mrs Mehanna mean they are not living separately and apart. While the Secretary does not concede they live in separate residences, it contends that, even if they do, the other features of their relationship prevent the conclusion that they live separately and apart.
5.Mrs Mehanna, on the other hand, contends, in essence, that they have not resided together since their separation in 1995, that their short reunions over the years were merely short term and doomed attempts to reconcile, they provide no companionship or support to each other and that any dealings they have are centred on the welfare of the children. On this basis, she contends that she and Mr Mehanna are living separately and apart on a permanent or indefinite basis.
6.Section 4(3) of the Social Security Act 1991 (“the Act”) prescribes a number of secondary issues or factors that must be addressed in resolving the central issue. Broadly, they require an inquiry into:
· The financial aspects of the relationship between Mr and Mrs Mehanna;
· The nature of the household;
· The social aspects of the relationship;
· The sexual relationship; and
· The nature of their commitment to each other.
7.I am mindful, in this exercise, of the comments made by the Federal Court in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 in which the Court, after listing a number of matters relevant to the question of whether a married couple are living separately and apart, said:
“It is not suggested that this list is exhaustive nor will each of these subjects fall to be considered in every case. It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact-finding tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators. The tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.
It should, of course, be clearly understood that no tribunal is required, in every case, to compile something in the nature of a checklist and then to proceed slavishly to comment on each item in the list. The personal circumstances of people vary substantially. The responsibility of the tribunal is to extract from the evidence and other material that is before it those items of information that are properly classified as material to its deliberations. If the tribunal performs that task it will only address those issues that are personal to the decision that is under review; it will then be able to state its findings on material questions of fact with appropriate references to the evidence or other material on which those findings were based.”
8.Keeping in mind that my task is to assess the totality of the evidence before me, some additional and prominent issues emerge from the evidence of Mr and Mrs Mehanna’s circumstances in addition to those set out in section 4(3) of the Act. These additional issues include:
· The significance of evidence of Mr and Mrs Mehanna’s desire for reconciliation in counterpoint to evidence of their inability to compromise.
· Mr and Mrs Mehanna’s evidence of separate residences since 1995, punctuated by short reunions during which their 2nd, 3rd and 4th children were conceived. This evidence, if accepted, raises the issue of the importance of cohabitation, or the absence of it, to the condition of “living separately and apart on a permanent basis”;
· The significance of Mr and Mrs Mehanna’s common involvement with and care for their children to the question of whether they are living separately and apart;
9.I will consider the evidence with all of these issues or factors in mind.
10.At this point, it is appropriate to say that I consider Mrs Mehanna to be a witness of credit. Her evidence was candid and, indeed, often not to her advantage. Mr Mehanna’s evidence was sometimes less compelling, generally because it was often vague and impatient. He was clearly annoyed at having to spend time away from his business to attend the Tribunal hearing. However, I do not consider his evidence incredible or unbelievable.
financial aspects of the relationship
11.It is not in dispute that Mr and Mrs Mehanna purchased, as joint tenants, after their initial claimed separation, a property at 159A Wollongong Road, Arncliffe. The property was for investment purposes and was sold in 2001 to fund the purchase of another property, as joint tenants, at 164 Wollongong Road, Arncliffe. Mr Mehanna’s evidence was that it was purchased as a residence for Mrs Mehanna and the children. The evidence of all witnesses was that he had never lived there.
12.Mrs Mehanna’s evidence in relation to the purchase of this property is significant. She said that its purchase arose after her mother, at whose house she had been living with her, then, 3 children, was urging her to leave or to leave the children with Mr Mehanna and threatened to eject her if she did not do so. Mrs Mehanna said she confronted Mr Mehanna with this problem (including the prospect of leaving the children with him) and he agreed to purchase the Wollongong Road property and, at her insistence, to place her name on the title.
13.Mr and Mrs Mehanna both gave evidence that their purpose in purchasing the property at 164 Wollongong Road as joint tenants was to ensure that, if anything happened to either of them, the property would be available for the benefit of the children.
14.The evidence of Mr and Mrs Mehanna was that Mr Mehanna meets the mortgage payments on the Wollongong Road house, pays or has paid some private school fees and makes regular monthly payments of child support. Child support payments are made direct to Mrs Mehanna, although initially Mrs Mehanna registered with the Child Support Agency. Mrs Mehanna pays no rent for the house but meets all other expenses such as gas, electricity and water. I note that some of these accounts are in Mr Mehanna’s name. While, at the beginning of their marriage, they had a joint bank account, Mrs Mehanna ceased to use it soon after their initial claimed separation and in 1996 the account was closed. Apart from the house and mortgage, they have no other shared assets or liabilities. I accept this evidence.
15.I also accept the evidence, documentary and oral, of Mr Mehanna’s use of Mrs Mehanna’s address, first at Booth Street, and later at Wollongong Road, for correspondence relating to his paving business and for other purposes, including communications from banks. He also had the telephone line connected at Wollongong Road in the name of his business and Mrs Mehanna would sometimes take messages for the business and pass them on to Mr Mehanna. Prior to the purchase of Wollongong Road, Mr Mehanna used the Booth Street address and telephone number for his business as well. I accept his evidence that, now, he uses his mobile telephone for business matters and, from the end of 2004 the telephone account at Wollongong Road was no longer in the name of his business.
16.I note Mr Mehanna’s evidence that his accommodation, since 1995, has been unsettled and that that is why he has made use of Mrs Mehanna’s residential addresses. However, I also note that he claims to have lived for approximately 4 years with a Mr Al Saad and, since then, continuously with his cousin Mr Hassan Mehanna, albeit at a number of different addresses.
17.I also accept the evidence of Mr and Mrs Mehanna that Mr Mehanna makes his motor vehicle available to Mrs Mehanna sometimes.
18.These matters do not indicate any pooling of financial resources or sharing of day to day expenses. However, it is clear that Mr Mehanna continues to provide for his family through maintenance of the mortgage and regular payments of child support. There is no evidence to suggest that the joint ownership of the Wollongong Road property will be disturbed and, indeed, Mr and Mrs Mehanna’s evidence was that, in their view, it provides a means by which they may ensure the future security of their children.
nature of the household
19.A central feature of the evidence given by Mr and Mrs Mehanna, Ms Nancy Mourad (her neice) and Ms Latifi Mourad (her sister) is the assertion that since 1995 Mr Mehanna has not resided with Mrs Mehanna. According to the evidence of Mr and Mrs Mehanna, this separation has been interrupted by 3 short periods (approximately 1 month each) of reunion in 1995, 1997 and 2002 during each of which a child was conceived.
20.Nancy Mourad said that she lived at Booth Street until Mrs Mehanna moved from there in 2002 and her evidence was that from 1995 Mr Mehanna did not reside there. She also stayed with Mrs Mehanna at Wollongong Road for a few months in 2003 and her evidence was that Mr Mehanna was not living there at that time. She also said she kept in frequent contact with Mrs Mehanna at other times, generally on weekends and saw no evidence of Mr Mehanna living at the Wollongong Road house and has never had him answer the telephone when she called.
21.Latifi Mourad’s evidence was that she has never seen Mr Mehanna’s belongings at Mrs Mehanna’s house but has seen his car parked there. She added that she has seen him “around” but never in the company of Mrs Mehanna and has never had him answer the telephone when she has called.
22.The evidence of Mr Mehanna’s accommodation arrangements is less than satisfactory. His evidence as to his accommodation was vague and can be distilled at best as having lived with a friend, Mr Bel Al Saad, at a number of addresses, for approximately 4 to 6 years. He said that when he left the house at Booth Street he did not tell Mrs Mehanna where he was living because he did not want her to go there or talk to his friends, thereby causing him to “lose face”. Mr Al Saad gave evidence to the Tribunal but one of the few matters that were agreed between the parties to this application is that his evidence was unreliable and of little probative value.
23.Mr Mehanna said that he then lived with Mr Hassan Mehanna, a distant cousin, and continues to do so. Hassan Mehanna made a statement on 27 August 2004 in which he said that Mr Mehanna moved in with him in January 2004 but pays no rent, contributing to food and other costs. Hassan Mehanna was not available for cross examination and so limited weight can be given to his statement. In December 2004 Mr Mehanna signed a lease for a unit in Bexley with Hassan Mehanna and his wife, Zeinab.
24.On the basis of this evidence, while I cannot be satisfied as to exactly where Mr Mehanna has lived since 1995, I am satisfied that he did not live in the same house as Mrs Mehanna. In making this finding I am mindful of the fact that the evidence in support of Mr and Mrs Mehanna’s claimed living arrangements is from members of their families and could be regarded as not independent. I am also mindful of the continued use by Mr Mehanna of Mrs Mehanna’s addresses for his business purposes and the continued appearance of his name on some household accounts. However, in the absence of any direct evidence to the contrary, I accept the evidence of Mr and Mrs Mehanna that, since 1995, and with the exception of three periods of approximately 1 month each, they have not resided together. I accept that attempted reconciliations, each lasting approximately 1 month, took place in March 1995, in 1997, and in March 2002.
25.Much was made of Mr and Mrs Mehanna’s evidence of Mr Mehanna providing some care of the children soon after the birth of their son in 2003. Their evidence was that when Mrs Mehanna became ill, one of their daughters telephoned Mr Mehanna and asked him to come and take care of them. He did so but it appears that his assistance was limited to buying takeaway food, hanging some clothes on the line and taking the children to the park. It also appears that this was an isolated incident and not typical of the usual arrangements for the care of the children, which was generally undertaken by Mrs Mehanna alone. I do not consider that it indicates joint responsibility for either housework or for the care of the children. That is not to say that Mr Mehanna plays no role in relation to the children. His evidence and that of Mrs Mehanna was that he sees the children often and that he is now a dependable provider for them. However, there is no evidence that he discharges that responsibility other than independently of Mrs Mehanna.
social aspects of the relationship
26.This factor or indicator is of little assistance in this matter, given the lack of evidence of the social aspects of the relationship before the initial physical separation. There is no evidence of engagement in joint social activities, including family social occasions, prior to the separation or after it.
27.The evidence of Latifi and Nancy Mourad is that Mrs Mehanna represented to them, and their understanding was, that she and Mr Mehanna were living separately and apart. Their lack of independence, as witnesses, has already been noted.
28.I note that the records of St George Hospital, made when her two oldest daughters and son Ali were born in 1996, 1998 and 2003, show that Mrs Mehanna said she was married. I do not find it surprising that she would do so in the circumstances. I also note that she named her mother or sister as next of kin for notification.
29.Documents in evidence, including file notes made by a Centrelink officer, also indicate that Mrs Mehanna informed Al Zahra Muslim Womens Association in 2001 that she was separated, that she had told a local real estate agent in 2001 that she had been separated for some time and had presented as single to a local pharmacist. Her oral evidence was that she advised her daughters’ school, Al Zahra College, that she is separated.
sexual relationship
30.There has clearly been sexual intimacy between Mr and Mrs Mehanna since their initial separation in 1995. Their evidence was that this occurred during the three periods of attempted reconciliation and during which their last three children were conceived. They each denied a sexual relationship beyond those times.
31.I have no option but to accept that evidence. Predictably, there is no other evidence available and, despite the remarkable reliability with which Mrs Mehanna conceived during each period of attempted reconciliation, there is no evidence before the Tribunal to support any other finding.
the nature of their commitment to each other
32.This is one of the most important questions in this application. Mr and Mrs Mehanna both gave evidence that they would like to be back together. However, their evidence shows that that, and their concern and affection for their children, is where their agreement ends.
33.Mrs Mehanna told the Tribunal that when Mr Mehanna returned after their separation in 1995 she was “over the moon” but he continued to go out every night with his friends clubbing and leaving her at home alone. Nevertheless, she took him back repeatedly, each time having a child with him. She agreed that she took no precautions against pregnancy each time he came back. She said she had taken the contraceptive pill at one stage because she was hopeful of reconciliation and did not want to get pregnant again, but she was concerned that it may cause cancer. She said, in relation to the last attempted reconciliation, that she wanted a boy and thought that Mr Mehanna would want to have a boy as well. Of the last reconciliation she said:
“I didn’t care if I got pregnant. I didn’t tell him that. I would have loved to have a boy. I think I saw a doctor about that when he was at home.” (transcript, 2 September 2004, p36)
34.She said that it hurt her, and still hurts her, that he goes out with others to the exclusion of her. However, she gave evidence of having strengthened her resolve and of having rejected his latest offer to return because she “never found that is a happy life” (transcript, 12 April 2005, p16). She said:
“By the time I had 4 kids I learned a lot about our relationship so my main concern was to keep him close to his children, to share the responsibility with me. There were 4 children. It was always the children. We would get along because he loves his kids. I see that he loves them all. I forgot about myself and my main concern was for the children.” (transcript, 12 April 2005, p38)
35.For his part, Mr Mehanna said that he, too, would like to live with his wife and children. However, he insisted that Mrs Mehanna’s jealousy stood in the way. When asked what he meant by “jealousy” he answered that he is a “womaniser” (transcript, 19 November 2004, p54). He said he kept going back for his children and that if she accepted that he will go out with his friends and clubbing he would return to her now, but only on those terms and she has never accepted them.
36.I note that, notwithstanding Mr Mehanna’s “womanising”, there is no evidence of either party having had a settled relationship with anyone else. However, it may be that is the whole point for Mr Mehanna, and for Mrs Mehanna the difficulties in that regard for a mother of 4 small children are obvious. I also note Mr and Mrs Mehanna’s similar evidence as to their purpose in buying houses as joint tenants, that is, to ensure that the house would ultimately go to the children. This inaccurate view of the effect of ownership as joint tenants does not allow for the possibility of intervention or control by another spouse or partner. It is clear, from Mrs Mehanna’s evidence that her understanding of the legal effect of ownership as joint tenants is that such intervention by a new partner would not endanger her children’s inheritance.
37.On the issue of trust, pertaining particularly to her collection of his mail, Mrs Mehanna said:
“Of course he trusts me. I’m reliable.” (transcript, 2 September 2004, p89)
38.Mrs Mehanna, however, emphatically said she does not trust Mr Mehanna and for that reason sought to have her name included on the title of the Wollongong Road property. Her misconception of the effect of joint tenancy is at play again here.
39.I also note that, when Mr and Mrs Mehanna’s last three children were born, Mr Mehanna attended the hospital for the births. Mrs Mehanna described his presence in the labour room as very aloof. Soon after the birth of their youngest child he came to the house to assist the children in the manner described earlier. I note, however, that there was no evidence of direct assistance to Mrs Mehanna. Mrs Mehanna also gave evidence that Mr Mehanna had recently come to the house late at night when their son was sick and had to be taken to hospital. Mr Mehanna minded the other children while she was away until about 2:00 am and left some 15 minutes after she returned.
40.I note that Mrs Mehanna, in some early documents lodged with Centrelink, indicated an ambivalence about the permanence of the separation. I do not consider this to be inconsistent with any later apprehension of separation on a permanent or indefinite basis.
41.I note that Mr and Mrs Mehanna lived together for some 18 months before Mr Mehanna left the house in 1995. Their physical separation, interrupted as found above, has, by contrast, spanned a decade.
desire to reconcile
42.One of the complicating factors in this application has been the apparent and mutual desire of Mr and Mrs Mehanna to reconcile over the last 10 years.
43.In order to properly assess the significance of this desire it is necessary to look at the circumstances of their initial separation and the pattern of intermittent reconciliation over the years. The evidence of Mrs Mehanna is most important in this respect.
44.Mrs Mehanna’s evidence was that, in the early days of their marriage, they were living in a granny flat at the back of her parents’ house. She described their relationship as very happy and said she was “very in love with him”. Their first child was born on 12 July 1994 and Mr Mehanna began taking English classes where he met some friends with whom he began to spend a great deal of time. He began to go out at night with them, at first on weekends, staying out very late and then every day after work. Mrs Mehanna was alone with their daughter and finding it very hard. They argued.
45.Mrs Mehanna’s mother did not approve of Mr Mehanna’s behaviour and Mr Mehanna began to blame Mrs Mehanna’s mother for their arguments. The arguments continued and escalated and one night, following an argument, he left, taking very little with him.
46.Mrs Mehanna thought he would return and described herself as “counting the days”. He did return but only to visit his daughter. On one such occasion, Mrs Mehanna tried to pin him down and find out what he wanted to do. He said he wanted to continue to enjoy his friends and continue as he had been. She described him as “very wild, very happy about going out” and said he seemed “very childish”. She said she would not accept that sort of life. This appears to have been the recurring theme of their relationship over the last decade and, according to her evidence, the central difficulty each time he has left again after an attempt at reconciliation.
47.As to their reconciliations, Mrs Mehanna said they would occur always at his request, with him behaving differently at first but soon drifting into going out every night and leaving her alone with the children. She described him as very restless, becoming bored easily and said she tried to make him happy but said that the life he wanted to lead distressed her. At one point in her evidence, when asked whether she still loved him, she said, “I don’t know”. She said she would not have him back because she had given him a chance three times with the children and his behaviour has not changed. She insisted she cannot accept his behaviour.
48.For his part, Mr Mehanna readily admitted that he would like to reconcile with Mrs Mehanna. However, he insisted that he would only do so if she accepted that he wanted to go out with his friends to clubs and if she would not be jealous. When asked why, in spite of all their difficulties, he has gone back to her again and again, he said it was “because she loved me” and when asked whether he wants to be with her, he said “Yes, I want to live my life”.
49.The evidence of Nancy Mourad was, in my view, significant. She said:
“They were always arguing. They were always fighting. They were always – he was always out, out of the house. He was – like he was never at home. There was no father at home. She was always alone, she was always with her children. She was always depressed, she was always crying. There wasn’t a man in the house. He was always out clubbing, with the wrong people, the wrong crowd.” (transcript, 12 April 2005, p45)
50.Later, she said:
“She thinks there’s hope. She always thinks there’s hope but …what can you say.” (ibid)
51.“Hope” is a recurrent theme in this relationship. It is clear that Mrs Mehanna has, and to some extent may still have, hope for a permanent reconciliation. It is also clear, however, that all attempts to date have failed. A hope for reconciliation does not amount to reconciliation. The evidence is that the very things that alienated these people from each other in the first place, remain in as strong effect as when they first separated. That is so, notwithstanding Mr or Mrs Mehanna’s enduring hope.
involvement with the children
52.Mr and Mrs Mehanna’s evidence was that Mr Mehanna sees the children regularly and that Mrs Mehanna encourages that. After the birth of their son, Mr Mehanna visited the children on a daily basis and Mrs Mehanna has never made it difficult for him to see them. Mr Mehanna said of her:
“Like a mother, there’s no one better than her.” (transcript, 2 September 2004, p59)
53.I am satisfied that Mr and Mrs Mehanna are both concerned with the welfare of their children and that Mrs Mehanna, in particular, has been driven, in part, in her dealings with Mr Mehanna, including their attempts at reconciliation, by her concern for her children. Mr Mehanna has provided accommodation for his family and makes regular child support payments. However, I do not consider that the co-operation they have achieved in relation to the children leads to the conclusion that they have a particular commitment to each other in any capacity other than as parents. It is clearly a tie between them and likely to endure but no more than it is for any parents who have continuing regard for their children’s welfare, whether they are living separately and apart or not.
physical separation
54.I have found that Mr and Mrs Mehanna, except for their three short attempts at reconciliation, have lived physically apart since 1995. Counsel for Mrs Mehanna referred me to a number of authorities, in the matrimonial jurisdiction, dealing with the significance of long physical separations to the matrimonial relationship.
55.In Main v Main [1949] 78 CLR 636 the High Court held that while physical separations of long duration, if treated by the parties as temporary, do not necessarily amount to living separately and apart, it is only in exceptional circumstances that a husband and wife will live apart for as long as 5 years and yet maintain a matrimonial relationship. In Saunders and Saunders (1976) 12 ALR 283, it was held by the Supreme Court of Victoria that, once the condition of living separately and apart is in existence, it requires a resumption of cohabitation to negate that condition. This allows for isolated or casual acts of sexual intercourse or social association as consistent with living separately and apart. The Court referred to a “vestigal remnant of marriage” and placed it outside resumption of cohabitation. In Macrae v Macrae [1967] 1 NSWR 745 the New South Wales Court of Appeal held that once the state of living separately and apart has been established, mere negotiation or intention to resume cohabitation does not put an end to it. In Bell v Bell (1979) 34 FLR 529n, the Family Court held that occasional contact and sexual intercourse between the parties after cohabitation ceased did not amount to a resumption of cohabitation.
56.I do not find these authorities particularly helpful in the circumstances of this application. They point to the importance of cohabitation in establishing whether the state of living separately and apart exists but I note that the attempts at reconciliation by Mr and Mrs Mehanna in 1995, 1997 and 2002 did involve cohabitation, albeit brief – so brief, in the context of a marriage now of some 12 years, that it could be argued they border on mere negotiation of the kind discussed in Macrae (supra). I am dealing here, however, not with matrimonial legislation but with the Act. I am also mindful of the submission of Counsel for the Secretary that, even if I were to find, as I have, that Mrs and Mrs Mehanna have not lived together since 1995 (apart from three periods of approximately 1 month each) there are other indicia, in accordance with section 4(3), that point to the state of not living separately and apart. In as far as Counsel for the Secretary urges my regard to those other indicia, I agree. I must turn my mind to all those matters.
57.However, the period of living apart in this case is strikingly long and therefore highly significant. It is not beyond the realms of possibility that 2 people would contrive, for a time, to present the appearance of living separately and apart, in order to gain an advantage under income support legislation. I hasten to add that no allegation of that sort has been made by the Secretary in these proceedings, but, that said, that kind of contrivance is not unknown. However, to sustain physical separation for a cumulative period of almost a decade weighs heavily against the conclusion that a state of not living separately and apart, even one of the most independent and modern kind, subsists. It also indicates the unlikelihood, in the future, of a successful reconciliation.
were mr and mrs mehanna living separately and apart as at 8 may 2003?
58.The state of Mr and Mrs Mehanna’s relationship as at 8 May 2003, and thereafter, may be summarised as follows. They own, as joint tenants, the house at Wollongong Road, with the view, at least on Mrs Mehanna’s part, that that form of ownership will guarantee the children’s inheritance of the property. Mrs Mehanna makes no contribution to the mortgage payments and receives a regular payment of child support from Mr Mehanna each month. They have no joint bank accounts or debts. Mr Mehanna uses Mrs Mehanna’s address and home telephone for the purpose of business communications.
59.Since 1995 they have been living apart, with 3 short interruptions of approximately 1 month in 1995, 1997 and 2002. During those interruptions or temporary reconciliations their 3 youngest children were conceived. Since 1995, at least, Mrs Mehanna has been the primary carer for the children. Mr Mehanna has seen, and continues to see, the children often but, apart from a short period of limited care shortly after the birth of their son in 2003, he does not play a role in their care. Mrs Mehanna does nothing to prevent him from seeing the children and prefers that he maintain contact with them.
60.They are regarded by members of Mrs Mehanna’s family as separated and having been separated since 1995. Mrs Mehanna has, on some occasions, referred to herself as married and on others she has identified herself as separated.
61.Mr and Mrs Mehanna are both concerned with the welfare of their children and co-operate reasonably well in that regard. However, they provide no support to each other of an emotional kind and share no companionship. Their period of living apart far exceeds their initial and later short periods of living together. They would both like to reconcile and Mrs Mehanna, in particular, has harboured an enduring hope for that over the years. However, neither is prepared to accede to the other’s terms and this has been the case on every occasion that reconciliation has been attempted. Their last attempt at reconciliation was in March 2002. Mrs Mehanna has, since then, become more steadfast in her rejection of Mr Mehanna’s proposed terms. Mr Mehanna does not resile from those terms.
62.In all, I consider that this amounts to living separately and apart on a permanent or indefinite basis. The limited financial aspects of the relationship, the decade of living apart, the absence of companionship and emotional support and the great unlikelihood of any further or successful reconciliation confirm me in this view. I am not persuaded otherwise by the parties’ hope, their past attempts at reconciliation or their co-operation in respect of the children.
63.For these reasons, I consider that Mrs Mehanna is, and was as at 8 May 2003, living separately and apart from Mr Mehanna. It follows that she is not a member of a couple within the meaning of the Act.
decision
64.The decision under review is affirmed.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL
Signed: .........[Linda Blue]....................................
AssociateDates of Hearing 2 September 2004; 19 November 2004; 12 April 2005; 13 April 2005.
Date of Decision 16 June 2005
Counsel for the Applicant Mr G Johnson
Solicitor for the Applicant Centrelink, Legal Services
Counsel for the Respondent Ms K Sant
Solicitor for the Respondent Legal Aid
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