Nahas; Secretary, Department of Family and Community Services
[2005] AATA 478
•27 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 478
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2004/946
GENERAL ADMINISTRATION DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Applicant
And
EMAN NAHAS
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date27 May 2005
PlaceMelbourne
Decision The decision under review is affirmed. (Sgd) John Handley
Senior Member
SOCIAL SECURITY – secretary appeal – whether respondent a member of a couple – separated but not divorced under Family Law Act – whether divorced under Islamic religion – section 4(3) criteria examined – supporting evidence by family and friends – decision of SSAT affirmed
Social Security Act 1991 (Cth)
REASONS FOR DECISION
27 May 2005 Mr John Handley, Senior Member 1. In September and December 2003 decisions were made by officers of Centrelink to treat Mrs Nahas as a member of a couple. Consequently other decisions were made to raise and recover Family Tax Benefit (“FTB”) paid between 1 July 2000 and 30 June 2001 in the sum of $8,683.35, and the sum of $1,919.90 paid within the period 1 July 2001 to 30 June 2002. Additionally it was decided to raise and recover Parenting Payment (“PP”) paid in the period 19 July 2000 to 3 June 2003 in the sum of $18,701.05.
2. Mrs Nahas appealed against those decisions to the Social Security Appeals Tribunal (“SSAT”). On 15 July 2004 the SSAT set aside the decisions and found that Mrs Nahas had not been a member of a couple since 5 March 1998. A consequence of that decision was that Mrs Nahas was not in debt to the applicant and moneys that had been recovered by Centrelink were directed to be repaid.
3. This appeal has been initiated by the applicant seeking a review of a decision made by the SSAT.
4. In a Statement of Facts and Contentions lodged prior to the commencement of the hearing the applicant – in part – contended:
10Contentions:
a This is a situation where the respondent is legally married. Accordingly, she and her husband are members of a couple unless the Secretary forms the opinion that they were living separately and apart on a permanent or indefinite basis in accordance with s4(2)(a) of the Act. In forming an opinion about whether the respondent and her husband were living separately and apart, the Secretary is required to examine the matters set out in s4(3) (ie the same criteria for determining whether a couple are in a marriage like relationship) but they are separate tests. Although the SSAT applied the correct test, it is contended that the evidence does not support the Secretary forming such an opinion;
10b The correct approach to forming an opinion should be as follows;
iAll facets of the interpersonal relationship are to be taken into account,
iiThe s4(3) matters must be considered, but there may also be other factors which should be considered in the particular case,
iiiThe opinion should be formed having regard to current society standards as to what constitutes a marriage-like relationship;
ivThe opinion should be formed having regard to the cultural background of the parties to the relationship,
vNo single factor is conclusive in any circumstances,
viFindings should be made in respect of all the material questions of fact;
5. Additionally the applicant contended with respect to s4(3) of the Social Security Act 1991 (“the Act”) that the criteria concerning the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, any sexual relationship between the couple and the nature of the couple’s commitment to each other should be considered.
6. The hearing commenced in Melbourne on 12 January 2005. Mrs Nahas gave evidence with the assistance of an Arabic speaking interpreter. Mr Hughan of Counsel appeared on her behalf and Mr Perdon appeared on behalf of the applicant. The hearing did not conclude and resumed on 15 March 2005 where a number of other witnesses gave evidence. Their evidence will be referred to later in these reasons.
7. The representatives of Mrs Nahas lodged a comprehensive Statement of Facts and Contentions prior to the commencement of the hearing together with an outline of the evidence of the witnesses called, including Mrs Nahas. She adopted her outline of evidence which was received as Exhibit 3 and is reproduced as follows:
1.I am the respondent in this application for review before the Tribunal. I understand that the applicant, on behalf of Centrelink, has applied to review the decision made by the Social Security Appeals Tribunal that I should not have been treated as a couple by Centrelink when it determined to cancel my parenting payment single (PPS) and to raise overpayments of the PPS and family tax benefit at the single rate that had been paid to me.
2.I ask that this Tribunal dismiss the application for review. I have not been living with Nabil Nahas as husband and wife since we separated in March 1998. At that time I discovered that he had been seeing another woman. I left our home in Rowville and stayed with my friend Rima Audi at her home in Noble Park for about two weeks. I took my two younger children with me at this time.
3.During these two weeks my husband arranged to move out of the home. I then moved back to 16 Kedleston Way Rowville. I have lived at that address since that time, although on weekends and during school holidays I usually stay overnight at Rima’s home.
4.On 31 March 1998 Nabil came to our house with his mother and showed me a divorce certificate that he had obtained from the Imam in Preston. A friend of our family, Kadry Mekhemar was there at the time and saw this happen. I signed the certificate and gave it back to Nabil who was to return it to the Imam and then bring me a copy of it. Unfortunately Nabil did not bring me a copy of the certificate.
5.However as a result of this procedure I consider that Nabil & I are divorced. In my mind we are no longer husband and wife. In fact Nabil & I have not had any marital relations since before that time. We do not go out together. I have very little to do with him.
6.I understand that there is some problem with the date on the copy of the divorce certificate that has been given to me by the Imam. I cannot explain why there is a correction as to the date.
7.Following our religious divorce I did go to the Family Court at Dandenong by myself on one occasion to try to make arrangements to get a divorce for the purposes of the Australian law. However I do not speak English and I found the visit to the Family Court to be frightening and confusing. Therefore I did not proceed to seek a divorce in the Australian Courts. However the divorce that was given by the Imam is to me and in my culture effective to end our marriage.
8.The evidence that I gave to the SSAT, which is set out in its decision is true. However I now wish to add the following information.
9.As I have said, I live at 16 Kedleston Way Rowville. I live there with my children, three sons – Zaher (born 18/4/1982), Nader (13/6/83), Mahmoud – (24/10/86) and my daughter Shadia (22/5/92). My son Zaher’s wife Joumana Derghan and their daughter Aya (24/3/03) also live with us.
10.The home has four bedrooms. Zaher, Joumana & Aya have the main bedroom which has an en suite. I share a bedroom with Shadia. Nader has his own room. Mahmoud sleeps in the other room. Nabil usually stays overnight at the home. Nabil sleeps on a mattress either in Mahmoud’s room, where his clothes are kept, or in the lounge room. Where Nabil sleeps depends on how Mahmoud is. He suffers from asthma and often breathes very heavily or snores in his sleep.
11.After Nabil & I divorced I always allowed him to visit the home whenever he wished because he is the father of the children. From about 2000 I went to hospital at nights on many occasions. Rather than have the children, especially Shadia, the youngest, left at home by herself if I had to go to hospital, from around May 2003, the children asked Nabil if he would stay overnight.
12.I have been using the Ford motor car registration number FMS-606 for about five years. Following our divorce Nabil should have paid me a ‘deferred dowry’ as stipulated in our marriage contract, but he always told me that he did not have the money to pay. Instead of paying me the money, he gave me that car.
13.Over the years since our divorce from time to time Nabil has asked me to sign documents for banks and other finance applications. I have always done as he asked, as it is in our culture for the woman to do as she (is) asked in business matters. I never read these forms and did not know what was in them. I cannot read or write and I do not understand much English.
14.Nabil was the owner of the house at 16 Kedleston Way and had a mortgage over the house that was used for his panel beating business. While we were married he owed only about $35,000, but after Nabil’s brother left their partnership Nabil re-financed the home and paid his brother about $100,000.
15.I never received any of the moneys obtained by Nabil from these applications for finance and from the re-financing of the home. I have my own bank account and never received any money from Nabil to help with the bills or expenses for the family.
16.I did make an application for an American Express credit card, in which I stated that I was working in Nabil’s business. My friend Rima helped fill out the form and advised me that I should not have done what I did. However I was very desperate at the time. I had a lot of debts, totalling about $15,000. I owed money to Visa, for the gas and electricity bills, telephone and others as well. I was hoping to get a credit card so that I could pay off all these debts. As Rima had told me would happen, my application was not approved.
17.After Nabil & I divorced I had many trips to the Dandenong hospital, because I suffered anxiety attacks and depression. At no time did Nabil come to the hospital with me, visit me or take me there. I understand that the Dandenong hospital file indicates that I was registered as married with Nabil as my next of kin in 2000 & 2001. I did not give this information to the hospital staff as I could not speak English. I did not ever describe myself in this way after our divorce. I know that I had been to the hospital and that information was recorded during the time of our marriage.
18.The other information on the Dandenong Hospital file after April 2001 was not given by me. Rima is not my sister-in-law, she is a friend. She took me to the hospital on many occasions.
19.I am aware that the Hospital records show that on about 26 August 2000 I told the staff that ‘depressive episodes started about three years ago when [my] husband left [me].’ Although the time that is recorded there is a bit longer than the actual time of our separation, this information is correct. However I did not tell the doctors that we were attempting to re-unite. At the time Nabil’s family were placing me under pressure to reconcile with him, but I did not want to do so and have never reconciled with Nabil.
20.In November 2003 Nabil sold the house to my son Zaher for $265,000. The mortgage had not been paid for many months and the Bank was saying they were going to sell the property. To avoid that happening, Zaher obtained a loan and bought it from Nabil. Zaher obtained a loan of $200,000 for the purchase. $180,000 was paid to the Bank to pay off the mortgage. $20,000 went to Nabil. Zaher still must pay Nabil a further $65,000. I did not receive any of the proceeds of the sale.
21.Zaher then put the house up for sale, but he could not get a good enough offer, so he has now withdrawn the house from the market.
22.I am currently receiving disability support pension of $90 per fortnight and family allowance for Shadia of $200 per fortnight. I have no other income. Nabil does not provide any financial assistance to me or for the children. I have to pay about $90 per month in medicines. The rest of my money goes on paying bills and for food. I cannot even afford to buy any new clothes for myself.
eman nahas
8. Mrs Nahas confirmed that she was married to Nabil Nahas in Kuwait in 1975. Two children were born in Kuwait and in 1985 she, her husband and the children migrated to Australia. Another two children were born in Australia.
9. The respondent and her husband both follow the Islamic religion. Mrs Nahas regards herself as subject to Islamic law. She acknowledged that she is not divorced under Australian laws but regarded herself as having been divorced by her husband by Islamic law on 31 March 1998. The circumstances giving rise to that divorce was the subject of extensive evidence.
10. Mrs Nahas said that she and her husband were divorced because he had met and fell in love with another woman and decided to leave the family home at 16 Kedleston Way, Rowville. Under Islamic law she said that there are two ways that a divorce can be achieved being either, a husband can tell his wife that they are divorced or the husband can attend a Sheikh at a Mosque and notify the Sheikh that the couple are divorced. Mrs Nahas understood that her husband did attend Sheikh Fehmi Naji EL-Imam at a Mosque operated by the Islamic Society of Victoria Inc. at 90 Cramer Street, Preston in March 1998. She said that he returned to the family home on a date in late March 1998, with his mother, and brought with him a certificate of divorce given to him by the Sheikh. She said that she was asked to sign it and did so. She understood that he would take the certificate back to the Sheikh who would keep it amongst records at the Mosque. She did not retain a copy of it.
11. Later, when the decision was made by Centrelink to cease paying benefits, Mrs Nahas sought legal advice and was asked by her solicitor to obtain documents which would indicate that she was living separately from her husband. She sought a copy of the “Religious Divorce Certificate” (Exhibit 2) from the Sheikh but he was unable to locate it. Eventually a meeting was arranged at the Preston Mosque between the Sheikh, Mrs Nahas, her husband and some witnesses.
12. This part of the evidence had been the subject of extensive contentions by Mr Perdon prior to the commencement of the hearing and issues surrounding the content of the divorce are discussed as follows.
13. A copy of the “Religious Divorce Certificate” is found within the T-documents at page 475 and 488. It appears that each certificate is in identical terms and each appears to be a copy of an original document. The certificate at page 488 appears to be the certificate which was received by the SSAT after it made enquiries and prior to delivery of its decision (refer paragraph 6 of SSAT Reasons For Decision).
14. In the contentions lodged prior to the commencement of the hearing, Mr Perdon took issue with the date of the divorce as recorded on the duplicate certificate being “31/03/98AD”. He asserted that the numerals “98” were amendments and had been written over other numerals which he asserted were “04”. Additionally, he lodged documents obtained by a Web search which explained the operation of the Islamic Calendar. Those documents indicate that an Islamic Calendar is based on 12 months but each year has an average of 354.36 days and years are counted, or measured, from the occasion of Mohammed’s immigration to Medina in 622AD. By way of explanation, a Muslim year is counted as the year of a Christian Calendar less 622. Accordingly, using the year 2003 of the Christian calendar as an example, subtraction of 622 results in 1381. However, by reason of the Islamic calendar comprising less days than the Christian calendar, the Islamic year of 1423 applies.
15. Mr Perdon asserted that the amended date necessarily concealed the real date of the divorce of 31 March 2004 because the Islamic date also recorded on the divorce certificate is “10/02/1425AH” which he contended – by reason of a conversion chart ‑ corresponds with the date 1 April 2004.
16. Apparently after Mrs Nahas became aware that the applicant would make these contentions at the hearing, she arranged to meet again with the Sheikh who agreed to amend the copy of the divorce certificate. Under the date of “31/03/98AD”, the Sheikh has written by hand “this is the correct date of divorce”. On the same document he has also amended the Islamic date and has substituted “14/12/1418”. Under that amendment the words “this has been corrected by Sheikh Femi Naji EL-Imam”. Each amendment is signed by the Sheikh and separately the certificate has a stamp imprinted bearing his name and signature as the “Imam of the Islamic Society of Victoria”.
17. Mrs Nahas said that she attended the Sheikh after the Reasons For Decision were delivered by the SSAT but it would appear on analysis of the Reasons of the SSAT, and by reference to the amended document of 23 December 2004, that she has attended the Sheikh on two occasions.
18. Mrs Nahas said that when she first attended him, he confirmed that he was unable to locate the certificate of 1998 but found reference to that date in a “book”. Mrs Nahas said additionally that she remembered the date of the divorce and said that it was a date she would not ever forget. She said that one of the witnesses to the certificate was Mr Kadry Mekhemer (“Kadry”) who gave evidence on the second day of the hearing and who lodged an Outline of Evidence prior to the commencement of the hearing. She said the other witness was a person who was at the Mosque on 31 March 1998 but she does not know his name.
19. Accordingly Mrs Nahas said that she regarded herself as being divorced under Islamic law since 31 March 1998.
20. Mrs Nahas said that she did attend the Family Court at Dandenong in 1999 with Kadry. She said she was given “some papers” by a receptionist but felt “scared” and she left. She said that she was scared because she did not speak or read English and did not know what to do with the documents. An interpreter was not present. She said that she did not understand that she had to complete the documents in order to obtain a divorce under Australian law and she did not ask any questions. She did not pursue a divorce from the Family Court and said that she regarded herself as being divorced under Islamic law.
21. Mrs Nahas said that she does not regard herself as having any relationship with her husband and does not communicate with him. She said that if she “wants to talk with him” she asks the children to ask him questions and to tell them what he wants. She said she last spoke with him when they met at the Mosque.
22. She said that her husband returned to the home at Kedleston Way when she became ill in 2003. She said that she could not do anything to restrain him because “it is his home and he had been asked by the children to return to the house to look after them” because of the frequency of Mrs Nahas being admitted to hospital. She said her husband stays overnight only and sleeps in the family room and keeps his clothing and other possessions in the bedroom of one of the sons. Mrs Nahas said that she sleeps in her daughter’s room but stays at the house only between Mondays and Thursdays and on Fridays, Saturdays and Sundays she stays at the house of her friend Rima Audi (“Rima”).
23. Mrs Nahas said that she does not wash her husband’s clothes and does not know where his clothes are washed. She said that Kadry helps her around the house with gardening and maintenance and sometimes the children assist. She said that her husband does “nothing” and he has little interest in the children. Mrs Nahas said that she previously paid the expenses associated with running the home but since her payments ceased she does not pay bills and the eldest son, Zaher, who lives in the home with his wife, pays some of the bills. She said that her husband does not make any financial contribution at all nor does he pay board.
24. Mrs Nahas said that in 1975 when she married her husband it was a condition of the marriage – as recorded in a marriage contract – that he would pay her a dowry. At that time her husband apparently was unable to do so and it was agreed as a condition of the marriage contract that he would pay a “deferred dowry” in the event that they became divorced. She said that in 1998, he was therefore obliged to pay her the “deferred dowry” which was recorded in the contract as being of 10,000 Lebanese Lira. She said that in 1998 the Lebanese Lira was virtually worthless and it had the equivalent Australian value then of $5.00. She said that the sum of 10,000 Lebanese Lira in 1975 could have been converted by the Sheikh into an equivalent value at 1998 but in lieu her husband agreed to give her a Ford Ghia motor car registration FMS 606 which she regarded as having a present value of about $4,000. Mrs Nahas could not recall when her husband gave her that vehicle but said that she has not driven it since about 2002 when she first became ill.
25. Mrs Nahas said that she has been ill for a number of years. She said that she suffers from anxiety attacks and has recently been diagnosed with diabetes. She also suffers chest pain and tightness in the chest. There have been many admissions to the Dandenong Hospital either by ambulance or by friends. She said that her husband has never attended the hospital with her. She said she has never spoken with staff at the hospital, except the doctors. She denied that she had ever told any person at the hospital that she was married nor would she ever have described her husband as being her next of kin or that he lived at 16 Kedleston Way. She denied an entry in the hospital notes of 26 August 2000 which recorded her as having said that she had been depressed for three years subsequent to her husband leaving the home. Mrs Nahas denied ever speaking with a social worker or family therapist at the hospital. She said that her treating specialist and her general practitioner are both aware that she is separated from her husband.
26. Mrs Nahas said that the home at 16 Kedleston Way is presently owned by the eldest son, Zaher. She said that subsequent to 31 March 1998, the house was refinanced on a number of occasions in order for her husband to obtain moneys to finance his panel beating business which, by all accounts, would appear to be failing. She said that he borrowed moneys against the security of the house to install an oven and subsequently, when her husband’s partnership with his brother dissolved to pay out the interest of his brother in the partnership. On all occasions that the property was refinanced her husband would provide her with papers from the bank and asked her to sign. On each occasion she signed the papers. She did not ask him any questions and did not understand the nature of the documents that she was signing. She regarded the house at all relevant times as being the property of her husband. She did acknowledge however that the property was registered in joint names.
27. In recent years the home was purchased by Zaher by a loan of $200,000 that he obtained from G.E. Finance. Mrs Nahas said that she had observed eight letters from the Westpac Bank threatening to foreclose on the mortgage because payments had not been paid by her husband. In order to retain the home, Zaher purchased it. He continues to live in the house with his wife and infant child.
28. Mrs Nahas said that she did apply for an American Express credit card in 2002 and recorded in the application for it that she was employed in her husband’s business. She acknowledged that that disclosure was untruthful but said that she was then desperate for money. She said the card was not issued. She said that she had also made applications for credit from Sigma Telecom but could not recall whether finance applications had been made to AGC. She said that she presently has a Visa card issued by the National Australia Bank and by Eazy Bank and has debts in the vicinity of $15,000, being outstanding debit balances with respect to the Visa cards, a gas bill of about $2,000, an electricity bill of about $2,000, some school bills for the youngest daughter, Shadia and medical and pharmacy expenses not allowed by the Health Card which has been issued by Centrelink. Mrs Nahas said that the only income presently received by family members comprise, $90 paid to her fortnightly as disability support pension, $200 fortnightly paid to her as FTB and $165 per fortnight paid to Mahmoud. She understood that Zaher earns income but she did not know the amount nor was she aware of the amounts received by his wife from Centrelink or Nader. She said that the home at Kedleston Way has been placed on the market by Zaher but has not been sold. She said that Zaher had set a price of between $260,000 and $270,000 but one offer only of $230,000 had been made but had been refused.
29. Mrs Nahas agreed that she did attend an interview with a Centrelink officer in 2003 and was assisted by a telephone interpreter. She said that she answered the questions as best she could but she “didn’t like the questions I was asked” and said that she was in fear of the officer. She denied that she told that person that she paid all the household bills.
30. Mrs Nahas said that she last had a sexual relationship with her husband about eight years ago which she said occurred in about 1997 being in the year prior to the divorce of 1998.
31. In cross-examination Mrs Nahas said that her husband commenced self employment as a panel beater in about 1987. He has been in partnership from time to time but the partnership with his brother ended in about 1996 or 1997. Loans were taken out against the security of the house to pay out the interest of his brother in the partnership.
32. Mrs Nahas said that she left the Kedleston Way home when she and her husband were divorced by the Sheikh. She went to stay at Rima’s house at Noble Park for about three weeks and took the two youngest children with her. She understood that her husband stayed at the Kedleston Way home for about a week but when she learnt that he had left it, she returned there and has resided there subsequently between Mondays and Thursdays but on Fridays, Saturdays and Sundays she stays at Rima’s house.
33. She said that she learnt shortly after the separation that her husband had “taken a house” in Noble Park and was living with another woman who she understood to be Samar Fattel. She said that “people gossip” and had told her they had seen her with him at that house. She understood that the woman who was living with her husband was also married and when her husband learnt of the relationship (he had been overseas for approximately 12 months) he divorced her. Mrs Nahas understood her husband resided at Noble Park for about five years until he returned to sleep at the Kedleston Way home in about 2003.
34. Mrs Nahas said that she lived in France for about two months with the three youngest children sometime after the divorce in 1998. She said that her family paid for her tickets.
35. In about 2001 she also travelled to Lebanon and stayed with her mother who was in poor health. She said she paid for the tickets from funds that she held in a “cooperative” into which she had been making deposits for about three years. She also borrowed money to meet the costs of the airfare and travelled to Lebanon with Shadia, the youngest child only.
36. Mrs Nahas reaffirmed her earlier evidence concerning the attendance at the house by her husband in March 1998 with his mother when he produced the divorce certificate. She said that she could not recall the day of the week or the room in the house where it was signed but was adamant that it was 31 March 1998. She said that she regarded the divorce as being “in my absence”. She did not read the certificate but agreed that she signed it. She also said that she was then “shocked”. She said that she regarded herself as having been divorced since 31 March 1998 and said “I wish it had been earlier”.
37. Mrs Nahas was then taken to an application she made on 28 May 1998 for child support (T10). At page 43 she was asked the question “Are the parents divorced?” and the answer “No” was given. Mrs Nahas said that she would have been assisted in completion of the form by other persons because she does not speak or read English and said “others just say yes or no when they fill in the forms”.
38. Mrs Nahas was again asked questions concerning the contents of the Dandenong Hospital file which refer to her as living with her husband and children – and on another page of the file where she was described as attempting to reconcile with her husband. Mrs Nahas denied that these entries were correct and said that if she had ever been asked whether she was separated or divorced, she would say that she was separated because she did not regard herself as being divorced under Australian laws.
kadry mekhemar
39. Mr Mekhemar (Kadry) completed an outline of his evidence received as Exhibit 5. He gave evidence when the application resumed on the second day of hearing.
40. Kadry is presently a disability support pensioner said that he had known Mr and Mrs Nahas since 1979. He said he first met them when they were in Kuwait and he resumed his friendship in 1986 when he moved to live in Australia. He regarded Mr and Mrs Nahas as separated and said that they had been divorced under Islamic law. He said that they had been divorced since 1998 because he was present at their house when Mr Nahas attended with his mother and asked Mrs Nahas to sign a divorce certificate which had been issued by an Islamic Mosque.
41. The issue surrounding the divorce certificate was the subject of extensive examination-in-chief and cross-examination. Despite the assistance of an Arabic speaking interpreter, Kadry was confused from time to time as to the questions asked of him. The net result of the examination suggests that in 1998, on a date Kadry could not recall, he attended the house at Kedleston Way where Mrs Nahas was then living. He said he could not recall the time but he remembered that it was “after sunset”. He said that Mr Nahas returned to the house with his mother without prior notification because he knew that Mrs Nahas was “always home at night”. He said that Mr Nahas produced an Islamic divorce certificate and he asked Mrs Nahas to sign it. He said that Mrs Nahas did sign it and Mr Nahas then left the premises and took the certificate with him but he had not signed it. He understood that the certificate was later registered at the Islamic Mosque in Preston.
42. In 2004 Mrs Nahas sought to obtain a copy of that certificate, having been advised by her solicitors that it would be in her interests to file it for the purposes of these proceedings. He said enquiry was made of the Mosque and the Sheikh advised that the certificate could not be located. He said the Sheikh prepared another certificate intended to be a replacement for the certificate of 1998 which had been misplaced. It was later learnt that the dates recorded on the certificate of 2004 were incorrect and he and Mrs Nahas and Mr Nahas returned to the Mosque to satisfy the Sheikh that the dates were incorrect and to have it altered to record the date in 1998.
43. Kadry was shown the certificate of divorce received into evidence as Exhibit 10 which has obviously been altered. When he was asked whether the dates found within the certificate had apparently been altered, he said that “the handwriting is heavy”.
44. With respect to the relationship between Mr and Mrs Nahas, Kadry said that it was “clear” to him that they were not married and by reason of the Islamic divorce certificate “they cannot touch each other”. He said that since their divorce, he exchanges messages from one to the other only with respect to the children. Kadry said that Mr Nahas initially lived in Noble Park but later moved to another address “in the city”. He said that Mr Nahas returned to the home at Kedleston Way some time later because Mrs Nahas was frequently admitted to hospital at night and there was no adult person present to care for the youngest child. Kadry said he understood that Mr Nahas sleeps in one of the rooms at Kedleston Way, however, Mrs Nahas, nor does any other member of the family, cook or provide or clean for him. He said they do not socialise together.
45. Kadry said he lived with Mr and Mrs Nahas after he arrived in Australia. He said he attends the house at Kedleston Way almost daily because of his friendship with Mrs Nahas and her children. He performs some maintenance around the house and he sometimes has his meals at the house. He said that Joumana, being the wife of Zaher (the eldest child), prepares some meals and helps around the home. He said that Mr Nahas is not present at the house during the day and he understood that he only attends the house in the evenings to sleep.
46. Kadry said he knew that Mr Nahas had had a relationship with another woman and he understood that was the reason for the divorce. He also said that he understood Mr Nahas had intended to marry the other woman but he first needed to obtain a divorce. He did obtain the divorce and he continued to live with her but ultimately that relationship broke down.
rima audi
47. Ms Audi provided a Proof of Evidence received as Exhibit 6. She is self-employed as an interpreter and is a friend of Mrs Nahas.
48. Ms Audi said that she has known Mrs Nahas since 1987 when she arrived in Australia. She said that she was aware prior to the separation between the respondent and her husband that there were “problems” with their marriage. She said that Mrs Nahas had told her of suspicions that she had about her husband having a relationship with another person. She said that Mrs Nahas had told her that on Valentines Day in 1998 her husband had given her a box of chocolates which she regarded as being unusual. Some time later (on her birthday) Mrs Nahas observed a statement from Myer which recorded the purchase by her husband of some perfume. When she asked her husband about the purchase, she then learnt that it had been given to a female friend with whom her husband had been having a relationship. Ms Audi said that Mrs Nahas and her husband then had a number of arguments and by the end of March 1998 they had separated. Ms Audi said that she recalled taking Mrs Nahas to a Centrelink office at or about that time.
49. Ms Audi said that she also remembered that Mrs Nahas came to stay with her for approximately a week after the separation. The three youngest children also came with her. She recalled that Mrs Nahas had then told her that her husband had been “cheating” on her. She said that she also remembered that when Mrs Nahas returned to the matrimonial home at Kedleston Way, her husband had moved out.
50. Ms Audi said that she had not ever seen a divorce certificate but was aware that in March 1998 Mrs Nahas had been approached by her husband who had asked her to sign it. She said that she learnt of the certificate initially from Kadry Mekhemar and later she had had discussions with Mrs Nahas about it. She said that she recalled visiting Mrs Nahas one evening and was approached by Kadry outside the house who told her that it would be best in the circumstances to stay outside because Mr Nahas was present and had brought a divorce certificate with him.
51. Ms Audi said that since March 1998, Mrs Nahas has told her on a number of occasions that she wants nothing to do with her husband. She is aware that she has no relationship with him. They do not socialise and whilst Mr Nahas returned to the house in 2003, they would see each other rarely because Mr Nahas returns late at night and leaves early in the morning. She said that Mr Nahas returned to the house in 2003 because he had been requested by the children to be available to care for Shadia, the youngest child, who would otherwise be at home without supervision on the occasions that Mrs Nahas was attending hospital.
52. Ms Audi said that she frequently took Mrs Nahas to the Dandenong Hospital after hours because of anxiety attacks that she was suffering. On those occasions she would interpret for her. Ms Audi said that when asked by hospital staff whether Mrs Nahas was married, she would tell them that she was separated. She said that there maybe references in the hospital notes to Mrs Nahas being a married person but that would be because she (Ms Audi) acknowledges that under Australian law Mrs Nahas is not divorced (but is divorced only under Islamic laws).
53. Ms Audi said that she attends the Kedleston Way address almost daily. She does so because she regards Mrs Nahas as being a friend and because she has no other relatives in Australia. She is aware that Mrs Nahas sleeps in her daughter’s room and Mr Nahas sleeps elsewhere. She said that she is also aware that Mrs Nahas does not cook or clean for Mr Nahas and does not have any conversations with him. She said that if there is communication between them about the children, she would pass messages to him by attending his garage in Moorabbin.
54. Ms Audi said that she could remember an occasion where Mrs Nahas had completed an application form for an American Express credit card. She was aware that the disclosure on the form by Mrs Nahas, that she was employed by Nabil Motors, was not truthful but has been stated because Mrs Nahas was then desperate for money. She said that Mrs Nahas’ application for the credit card was refused. Ms Audi said that she had been told by Mrs Nahas that there were occasions where her husband had asked her to sign some financial documents, but she had learnt of this only after the papers had been signed. In those circumstances it was too late to advise her to seek legal advice, which she otherwise would have done.
zaher nahas
55. Mr Nahas (Zaher) is the eldest son of Mrs Nahas and is presently 24 years of age. He provided a Proof of Evidence received as Exhibit 7.
56. Zaher said that his parents no longer have any relationship and have not communicated since 1998 when his mother found out that his father was having a relationship with another person. Zaher said since that time there has been “a lot of fighting” and initially he, and the other children, did not want their father to stay at the house. He said that his father initially moved to his garage in Moorabbin, and he and the other children did not speak with him or see him for some time. He said he was not aware where his father lived after he moved from the garage but thought that it was with his father’s mother at her unit in Doveton. He said that his parents do not communicate with each other and exchange messages via Kadry Mekhemar. Since separation in 1998 he said that there has been “hatred” between his parents. He acknowledged that his father did move back into the house in approximately May 2003 but then only because his mother was frequently attending the Dandenong Hospital, often at night and there was no responsible adult available to look after Shadia, the youngest child. Zaher said that his wife, Joumana, lives in the house and their first child was born in March 2003. From that time, Joumana was no longer able to care for Shadia at night, when Mrs Nahas was admitted to hospital. Zaher was frequently absent at night because he worked night shift, but he has been a full time student since the beginning of 2005.
57. Zaher said that he and his wife Joumana were married in Lebanon in September 2001. She came to Australia in 2002 and there was a local wedding celebration on 22 February 2002. Joumana has no family in Australia and it is the Muslim custom in those circumstances to have the husband’s father escort the bride at a wedding celebration. However on 22 February 2002, Mr Nahas was not asked to perform this role and whilst he was invited to the wedding celebration it was as a guest only. Zaher said that on that day “we didn’t speak to him” and their father did not participate in the taking of family photographs.
58. Mr Nahas said that until 2003, his father paid mortgage payments over the house at Kedleston Way at between $1500 and $1600 per month to the Westpac Bank. For reasons that he did not know his father stopped making mortgage payments and after approximately six months of default in payments Westpac threatened to foreclose the mortgage. Mr Nahas was then working at Qantas earning between $1200 and $1400 per fortnight and decided to purchase the house to avoid the risk of it being lost. He entered into a contract with his parents (who were the joint proprietors) to purchase it at $265,000 which was the valuation provided by a registered valuer. Anthony Russo and Associates were the solicitors that acted for both parties in the transaction which was financed by a $200,000 loan obtained by Zaher from G.E. Finance, a gift of $20,000 by his parents to him and Joumana and the balance of $45,000 to be paid when monies become available. He said the monies obtained from G.E. Finance were applied by the solicitors to discharge the mortgage to Westpac bank and pay other accounts associated with his father’s business. He said the solicitor’s paid all of those expenses and no monies were actually paid to his father. From the beginning of this year, Zaher has been a full time student and receives youth allowance of $350.00 per fortnight. His wife receives family payment and also parenting payment but there are insufficient funds to allow payment of the mortgage to G.E. Finance and other utility bills and it is intended to place the house on the market.
59. Zaher said that his mother does not cook or clean for his father or indeed for any other person in the house. He said that Joumana undertakes all of these tasks and whilst meals are not specifically prepared for his father, who usually returns late at night and then leaves early in the morning, food is available for him should he wish to eat it. He said that his father does his own washing.
60. Zaher said that he knew nothing about his parents being divorced or about a divorce certificate.
joumana derghen
61. Ms Derghen is married to Zaher Nahas the eldest son of Mrs Nahas. She provided a Proof of Evidence received as Exhibit 11.
62. Ms Derghen said that she arrived in Australia in 2002 having married Zaher in Lebanon in 2001. She is presently 22 years of age. She said that she performs all domestic work around the home at Kedleston Way. In 2003 their baby, Aya, was born and she was no longer able to look after Shadia on the occasions when Mrs Nahas attended Dandenong Hospital. She said that Shadia was not secure at night and Mr Nahas was asked to come back to stay at the home to be available to her should she need it. She acknowledged that Shadia had older brothers at home who could have been available to her but she said that they were either “not old enough” or they were studying or they were out and sometimes they would be “fighting with Shadia”.
63. Ms Derghen confirmed that she and her husband purchased the property at Kedleston Way but said of the balance of $65,000 (refer earlier) $20,000 was paid to Mr Nahas and she did not regard that as a gift from him. She said that $45,000 remains owing to him.
sheikh fehmi naji el- imam
64. Sheikh Fehmi is the Imam of the Islamic Society of Victoria located in Kramer Street Preston. He said that he was the Imam of the Mosque at that location in 1998.
65. He was called by Mr Hughan to explain the history of the divorce certificates that had been issued. He did prepare a letter dated 23 December 2004 which was received into evidence as Exhibit 1 and records the following:
I, Sheikh Fehmi Naji El-Imam, the Imam of the Islamic Society of Victoria, hereby state that the date of the Religious Divorce of:
NABIL NAHAS & EMAN (HARB) NAHAS
Was the 31st of March 1998 corresponding to the Islamic Calendar date: 14-12-1418 A.H.
I have already put the exact Islamic date on the Original Divorce Document – in my file – and on the copy which is left with EMAN (HARB) NAHAS.
66. A photocopy of a divorce certificate bearing his signature is found at page 475 of the T-documents. It is the Gregorian date of 31/03/98 A.D. and the Islamic date of 10/02/1425 A.H. The numerals “98” appearing as part of the Gregorian date appear to be an alteration and appear also to have been written over other numerals. A better quality copy of that certificate is also found at page 488 of the T-documents but in another person’s hand, the words and numerals “via fax 17/6/04” have been written. It would also appear that that copy of the certificate was forwarded to the SSAT prior to its decision (refer last dot point on page 8 of its Reasons and paragraph 30 of its Reasons).
67. The original divorce certificate issued by Sheikh Fehmi was received into evidence as Exhibit 10. It bears the date “31/03/98 A.D.” where the numerals “98” are obviously an alteration. The Islamic date differs from the duplicate certificate at pages 475 and 488 of the T-documents and the date “14/12/1418 A.H.” appears. Unlike the apparent alteration to the Gregorian date, the Islamic date is also altered by different coloured ink and “white out” has been applied to cover the original writing. Under the numerals “31/03/98 A.D.” are the words “this is the correct date of divorce” with the signature of Sheikh Fehmi. Under the Islamic date are the words “this has been corrected by Sheikh Fehmi Naji El-Imam”. His signature again appears.
68. In evidence – which was taken by a poor quality telephone line – Sheikh Fehmi confirmed that in late 2004 he wrote the letter (Exhibit 1) and then forwarded a copy of the divorce certificate which had both Gregorian and Islamic dates amended. He said that he was then retaining the original document which had been prepared in 2004 when it was learnt that a certificate in 1998 had been misplaced. He also agreed that on 13 March 2005 – two days before the resumption of this hearing – he provided Mr Hughan with the original of the certificate which was received as Exhibit 10 in these proceedings.
69. Sheikh Fehmi said that he recalled receiving a divorce certificate in 1998. He had attempted to locate it but it could not be found. He said certificates are not kept by him by registration number or any other form of identity but rather they are filed in alphabetical order in a filing cabinet in his office.
70. Sheikh Fehmi said that he recalled a telephone conversation with Mrs Nahas in 2004 where he had been asked to amend the date on the certificate that he had initially produced in 2004. He said it was then learnt that the dates that he then recorded were incorrect. He acknowledged that he then recorded the dates of 2004 but reaffirmed that from other records he held, Mr and Mrs Nahas were in fact divorced on 31 March 1998. He said, he must have been the person who wrote the numerals “98” on the amended certificate but he could not recall what had initially been written.
71. Sheikh Fehmi said that under Islamic custom, a certificate of divorce is not necessary to establish a divorce but persons sometimes prefer to have a certificate kept at a Mosque which is then regarded as being “registered” and is used for record keeping purposes.
72. Mr Perdon then suggested to Sheikh Fehmi that the amended Islamic date of “14/12/1418” corresponded to the Muslim date of 12/4/98. Additionally it was asserted that the Gregorian date of 31/3/98 converted to the Islamic date of 1/12/1418. Sheikh Fehmi disagreed with this and said that his calculations of the respective dates were accurate.
written submissions
The applicant
73. Mr Perdon, on behalf of the applicant submitted that the respondent was at all relevant times, throughout the period in question, not living separately and apart from her husband on a permanent or indefinite basis. He submitted that the nature of the household was such that the respondent’s husband was still supporting the family and the evidence supported the view that he had been living at the family home at Kedleston Way at all relevant times throughout the period. The applicant submitted there was no consistency between the accounts as to where the respondent’s husband was living after the purported separation because he had represented the Kedleston Way address as being his address of residence in a number of transactions throughout the period. Furthermore, the applicant submitted that the reasons given to explain why the husband moved back to Kedleston Way in 2003 are implausible. The youngest child, Shadia, was of a sufficient age not to require adult care and it would not have been necessary for the respondent’s husband to move back into the family home, at the other children’s request, at a time when the respondent was frequently ill or hospitalised. The applicant also submitted that it was improbable that the husband would have moved back to the home at a time when the respondent was frequently ill, if marital disharmony was cited as a reason for the respondent’s medical condition.
74. With respect to the sale of the Kedleston Way home to Zaher in November 2003, the applicant submitted that it was done to remove the largest joint asset of the respondent and her husband from their ownership during the currency of the present application. The evidence suggested that the transaction was not at arm’s length but reflected an ongoing effort by the family to work cooperatively, through difficult financial circumstances. In further support of this submission, the applicant pointed to the payment of ongoing household expenses solely by Zaher, who is at present unemployed. By reason of these expenses far exceeding Zaher’s level of income, it was more likely that the respondent’s husband, who is the only member of the family to be employed on a full time basis, contributes to the family’s finances.
75. The applicant submitted that a divorce was not completed or in existence during the relevant period. The versions of events surrounding the divorce certificate are conflicting and there can be no certainty that a religious divorce took place in 1998. Further to this issue is the certificate itself. The applicant submitted that the dates on the certificate have been altered to reflect a situation more favourable to the respondent. The errors and the dates which were corrected were unable to be explained by the Sheikh and in the absence of corroborating documentary evidence, the dates cannot be confirmed. It was submitted, the evidence is more consistent with the divorce having taken place in 2004.
76. It was also contended by the applicant that the respondent was being evasive in her manner of reply to questions asked of her in giving evidence and her admission of making false representations to American Express raised suspicions of the honesty of her evidence.
The respondent
77. Mr Hughan contended on behalf of the respondent that any differences in the accounts of witnesses are explained by differences in recall of events, rather than a lack of veracity. He submitted the applicant’s submission that there was collusion between witnesses was implausible and the manner in which the respondent gave her evidence similarly does not suggest a lack of veracity, but rather occasional confusion as to what was being asked of her.
78. The respondent submitted that the religious divorce did in fact take place on 31 March 1998. Confusion does exist as to the creation of the duplicate certificate, however there was clarity from all witnesses that the divorce took place “some time ago”, which would be more consistent with it having taken place in 1998, rather than 2004. Errors on the certificate were subsequently remedied and the Sheikh gave evidence to the effect that those amendments were made by him personally and that no-one else could have altered it.
79. The respondent submitted that the lack of details as to Mr Nahas’ living arrangements between the time of separation and the time of moving back to Kedleston Way simply bolster the proposition that he was no longer part of the family unit, rather than indicating that witnesses were being evasive. The fact that the respondent’s husband continued to cite the Kedleston Way address as being his residential address does not indicate that he was living there, but rather that he continued to have some connection with the residence due to his children residing there and the fact that he was still making mortgage repayments, in a time of flux and uncertainty.
80. It was suggested that an inference should be drawn that Mr Nahas made financial contributions to the family by reason of the modest income of Zaher. His contribution as alleged, suggested a continuing connection to the respondent. Mr Hughan submitted there was no evidence of Mr Nahas making a financial contribution and the inference was impermissible.
81. With respect to contact between the respondent and her husband, it was submitted that household arrangements clearly indicate that they live separately and apart from each other. Communication is via the children and it is of great significance that the husband was not a member of the Nahas family at Zaher’s wedding, but rather participated on the day merely as a guest. Due to the respondent’s husband’s infidelity, he had been excluded from the family and it follows logically from the evidence of all witnesses that this was the reason for the separation and the subsequent divorce.
conclusions and reasons for decision
82. The Authorised Review Officer (“ARO”) in the present application considered that the issues to be decided were whether Mrs Nahas was separated whilst living under the one roof with her husband and consequently, whether the decision to pay benefits at the single rate was the correct decision (page 358). As a prelude to the findings of fact made by the ARO, it was understood that if a “couple claimed to be separated they must establish that they are living apart either permanently or indefinitely and there has been an estrangement or breakdown in their marriage or defacto marriage relationship. Generally a physical separation as well as an emotional separation between the couple is required”.
83. An assessment of whether Mrs Nahas is a member of a couple is relevant to determine the rate of benefits that have been paid. That is to say, if Mrs Nahas has at all relevant times, not been a member of a couple, she has had an entitlement to be paid at the single rate of payment with respect to the benefits that have been received.
84. Section 4(2) of the Act provides two differing bases when determining whether a person is a member of a couple. The difference in the bases as recorded in the sub-section is dependent upon whether the person has been “legally married”.
85. At all relevant times, Mr and Mrs Nahas have been married for the purposes of the Family Law Act 1975. It was contended by Mrs Nahas that she and her husband were divorced under Islamic law and tradition.
86. Section 4(3) of the Act records criteria to assist in the forming of an opinion about the nature of the relationship. That is to say, s 4(3) is drafted in a manner which is designed to assist in forming an opinion as to whether a person is a member of a couple irrespective of whether they were at relevant times “legally married”.
87. All of the criteria found within s 4(3) of the Act must be considered but it is not intended as an exclusive basis. Other matters may be considered. Section 4(3) is reproduced as follows –
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.
88. The hearing of this application was conducted over two days. Mrs Nahas gave evidence for one whole day with the assistance of an Arabic speaking interpreter. There were many occasions when she was confused as to the questions asked of her and was embarrassed when matters of an intimate nature were raised. Having observed her give her evidence and having read the documents lodged in these proceedings, I am satisfied and find as a fact that she is a witness of truth. I am also satisfied that the various witnesses that gave evidence on the second day of hearing are also witnesses of truth. There is nothing to suggest that Mrs Nahas and any of the other witnesses were in any form of collusion or alliance with respect to the evidence given, as was submitted by the respondent. Some recall of events and details was incomplete and there were slight discrepancies in the evidence between some of the witnesses, but this I believe can be reasonably explained by persons having to recall events over a seven year period.
89. As a fact I am satisfied that Mrs Nahas and her husband separated in March 1998. This occurred when she learnt that he had been having a relationship with another woman. It is not clear whether Mr Nahas left voluntarily or whether he departed the family home at Kedleston Way by the urging of Mrs Nahas, nonetheless separation then commenced.
90. On 4 March 1998, Mrs Nahas made an application for pension (T3). She then recorded that she was separated on 3 March 1998 (page 19). She recorded in the application that she had not ever been paid or claimed a social security benefit, pension or allowance. That she would claim such a pension on the day after separation is consistent with separation then having occurred.
91. On 28 May 1998 (T10, page 43), Mrs Nahas completed a form which enquired into the household and the nature of her relationship. She then recorded that she had separated on 6 March 1998 and that she and her husband had not lived together since separation. The difference in the date recorded of separation between this form and the form referred to above is, in my view, irrelevant.
92. Some significance was attached in these proceedings to the evidence concerning the divorce obtained through the Islamic Mosque and when or whether such a divorce had ever occurred. Certificates of Divorce had been altered and had been acknowledged by Sheikh Fehmi Naji El-Imam as having been altered by him, because of an error that he made when a duplicate certificate was sought by Mrs Nahas.
93. Initially, there may have been grounds for suspicion upon sighting the first duplicate certificate; the suspicion being that the date of 1998 had been written over the date of 2004 to more favourably support the respondent’s case that the divorce took place in 1998. However when more was known of the circumstances giving rise to the completion of the divorce certificate in 1998, the misplacing of it at the Preston Mosque, the subsequent issue of a duplicate certificate and later corrections of relevant dates, I am satisfied, having heard the evidence of the Sheikh, Kadry and Ms Audi, together with the evidence of Mrs Nahas, that a divorce was obtained between she and her husband in 1998.
94. In making these findings of course it is implicit that I am satisfied that the Sheikh is a witness of truth, as indeed were the witnesses Kadry and Ms Audi. Neither of those persons have any investment in the outcome of these proceedings nor do they achieve anything by being untruthful. In so far as the Sheikh is concerned especially, it cannot be said that his evidence is motivated by some allegiance of friendship with Mrs Nahas.
95. There were a number of occasions when documents were referred to Mrs Nahas to explain recordings by her and others that she was not “divorced”. One such document was a questionnaire submitted by the applicant (T10, page 43) enquiring into the nature of the relationship. Mrs Nahas, or someone on her behalf, had recorded that she and her husband were not divorced. Mrs Nahas explained that on this occasion and on other occasions when she was asked to speak of the relationship she acknowledged that she was not divorced so far as Australian law was concerned. Despite the answer recorded in this form she has also recorded that she and her husband were separated at 6 March 1998 and had not lived together since first separating.
96. Similar observations as to the way in which the relationship between Mr and Mrs Nahas are described can be found within the records of the Dandenong Hospital which were received into evidence. There are many references to Mr Nahas being described as either the “husband” or “next of kin” and Mrs Nahas being recorded as being a “married” person. Those various descriptions are, in so far as Australian laws are concerned, without quarrel because her husband remained her next of kin, he was the “husband” and she was a “married” person. Nonetheless in notes taken by a hospital social worker which are undated but which appear to have been recorded sometime in 2001 it is noted that Mrs Nahas had been admitted to hospital with depressive episodes “staring three years ago when her husband left her”. The notes also record “client and her husband are currently attempting to reunite” (which was strenuously denied by Mrs Nahas in her evidence). The notes also record that at the time of the interview with the social worker, Mrs Nahas was “currently estranged from husband”.
97. In April 2001 the records of the hospital appear to have changed to the extent that Mrs Nahas is then recorded as being separated and Ms Audi is recorded as being her “sister-in-law”. That is not accurate but it does tend to indicate a change in the perception at least of Mrs Nahas of the nature of the relationship with her husband. Indeed on 14 September 2004, Mrs Nahas is recorded as being “divorced” and Joumana, her daughter-in-law, is recorded as being her “next of kin”.
98. Mrs Nahas does not speak English and is of course not responsible for the entries upon the various pages comprising the Dandenong Hospital records. The various persons referred to throughout the hospital records as being the next of kin of Mrs Nahas suggest errors in the recordings by hospital staff and or difficulties in communicating. Rather than the records supporting the applicant’s case that Mrs Nahas remained at all relevant times “married” to her “husband”, I am satisfied on balance that the records point to Mrs Nahas being separated and being admitted to hospital by persons other than her husband.
99. I am satisfied also that at relevant times Mrs Nahas was of the belief that she was divorced according to Islamic tradition and I am also satisfied that she is a person who is influenced by and acts upon Islamic custom and tradition. She was clearly of the opinion that the interests of her husband took precedence over that of her own, and despite being registered as joint proprietor of the real estate at Kedleston Way, she believed that the property was that of her husband. On the occasions that he sought additional finance against the security of the property, she did not demur in completing documents to allow finance to be obtained by him. This was not in my view an indication of an ongoing relationship but rather a belief by her that the property was his.
100. With respect to the veracity of Mrs Nahas it was submitted that the evidence with respect to her application for an American Express credit card pointed to her as being a dishonest person. On the contrary I would suggest that her admission to making an application to American Express and submitting false information is the conduct of a person who is prepared to acknowledge that in her attempts to obtain finance – in the absence of financial support from her husband – she had to resort to a false representation. She did not attempt to conceal that episode but rather she agreed that the application contained false statements. That is not the evidence of a person who in my view is dishonest.
101. The applicant submitted that by reason of the respondent’s husband failing to comply with the summons to give oral evidence and produce documentation “could also be construed as being consistent with the family’s interests”. In my view no such construction upon the failure of the respondent’s husband to comply with the summons is permissible. It would have been preferable to have Mr Nahas present at the hearing and to have him comply with the summons. His failure to appear has caused a number of issues to be unexplained; for example, why he apparently continued to have his mail sent to the Kedleston Way address and his continuing to have motor car registrations and his licence recorded at the Kedleston Way address. There may be an explanation for him apparently not changing his records but to infer that this amounts to him and Mrs Nahas continuing to be members of a couple would be wrong and would be inconsistent with the evidence that was heard. Additionally this review may have been assisted in his explanation as to a number of financial events that occurred between 1998 and 2004. In the absence of evidence from him, findings can only be made upon the evidence presently before the Tribunal.
102. If there was any merit in the submission of the applicant that inferences should be drawn against Mrs Nahas by the absence of her husband it would be equally capable of inference to conclude that the failure of Mr Nahas to respond to the summons is the conduct of a person who does not believe that he is a member of a couple. If he was, he would attend the Tribunal to assist his wife. Equally it would be possible to conclude – by inference – that his failure to attend the hearing amounts to an absence by him of a commitment to the relationship with his wife and unwillingness on his part to assist her in resisting the allegations that have been made by the applicant.
103. I am not prepared to make findings upon the inferences suggested by the applicant. Nor am I prepared to make findings upon the contrary inferences that have been postulated by me. I would have preferred to have heard the evidence of Mr Nahas and had a more complete picture but in his absence I propose to make findings as above and as follows upon the evidence heard and upon the documents that were read.
104. With respect to the criteria under s 4(3) of the Act –
The financial aspects of the relationship
Whilst Mr and Mrs Nahas were joint proprietors and joint mortgagors of the property at Kedleston Way, Mr Nahas did make the payments over the mortgage to the Westpac Bank for a period of time until 2004 when those payments ceased. Mrs Nahas then learnt that the payments were some seven or eight months in arrears and faced with the risk of foreclosure, Zaher Nahas purchased the property. There was evidence of Mrs Nahas having to rely on pension payments and contributions by family members to meet day to day expenses and there was no evidence of any contribution or assistance by her husband with respect to those expenses. Mrs Nahas did agree to sign documents presented to her by her husband from time to time when he was making applications against the security of the matrimonial home to obtain finance with respect to his panel beating business. Mrs Nahas obtained no benefit from completing those documents and it would appear that the conduct of the husband was more in the nature of a commercial transaction rather than permitting his wife to have any interest – real or emotional – in the panel beating business. The failure of Mr Nahas to provide financial support to Mrs Nahas and the children of the marriage gave rise to her having to make applications for credit cards, including on one occasion, false representations to American Express. That she should have to make those applications is again consistent with the absence of financial support by her husband.
Prior to 2005 Zaher was in full time employment and his salary was used to meet mortgage payments and day to day living expenses. From 2005 he has been a full time student and receives social security benefit only. I was asked to draw an inference that by reason of his reduced income there must be a financial contribution to the home by the respondent’s husband because in the absence of such a contribution, day to day expenses could not be met. I am not prepared to make that finding, in the absence of evidence from the husband, and by reason of other evidence heard of pension and benefits being received by Joumana and by the respondent herself.
The nature of the household
Since separation Mrs Nahas has herself been responsible for the care and maintenance of the children and has on occasions been assisted by Ms Audi and Joumana. The respondent’s husband has returned to the home in recent times to reside at night, but only to provide the presence of a responsible adult when Mrs Nahas has been admitted to hospital. On those occasions it appears that he returns to the house late at night and leaves early the following morning and sleeps either in the bedroom of one of the younger sons or on the lounge room floor. There does not appear to be any interest by him in the children or their welfare or indeed in Mrs Nahas. There is no social interaction and there is no communication between him and Mrs Nahas other than through intermediaries. Indeed, the regard for him as a member of the family is apparently so diminished that he did not form part of Zaher’s wedding party at the marriage celebration in Australia following the marriage first having occurred in Lebanon in 2004. None of the witnesses – including family members – spoke of him in any terms which could be regarded as complimentary or expressing any regret that he is no longer a member of the family. He does not perform any maintenance over the home or contribute to the household. His transitory connection to the property, the absence of a relationship and the absence of social interaction and communication is not the conduct of a person who is a member of a couple.
The social aspects of the relationship
All of the witnesses were firm in their evidence that Mr and Mrs Nahas do not hold themselves out as being married or as members of a couple. Their friends and associates do not regard them as having a relationship and this must have been obvious to all the persons present at the wedding of Zaher and Joumana.
The sexual relationship
There has not been any sexual relationship between Mr and Mrs Nahas – upon her evidence – since 1997.
The nature of the commitment to each other
Upon the evidence heard there has not been – since 1998 – any companionship or emotional support between Mr and Mrs Nahas. That Mr Nahas would approach his wife in the same month of separation for a divorce indicates to me that he then regarded the relationship as being at an end and from that time there is nothing to indicate that the relationship would ever resume. Indeed his absence from the home for many years and the inability of the witnesses to locate him or know of his address clearly points to a person who not only is absent from the family unit but who is not regarded by the family – including Mrs Nahas – as being a member. Mr Nahas has returned to the home in recent times to sleep at night but only at the request of the children and not Mrs Nahas.
105. Having regard to all of the foregoing I am satisfied that at all relevant times Mrs Nahas was not a member of a couple and she has been living separately and apart from her husband on a permanent basis.
106. In the circumstances the decision of the SSAT under review in these proceedings should be affirmed.
I certify that the 106 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: Alice Beattie
Associate
Dates of Hearing 12 January and 15 March 2005
Date of Decision 27 May 2005
Departmental Advocate Mr D. Perdon
Counsel for the Respondent Mr G. Hughan
Solicitor for the Respondent Mr L. Gage, Victoria Legal Aid
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