Secretary, Department of Social Security v Le-Huray
[1996] FCA 477
•17 JUNE 1996
CATCHWORDS
Social Welfare - Social security payments - Family payment - Satisfaction that a person "should, for a special reason in the particular case, not be treated as a couple for the purposes of the Act" - Circumstances capable of constituting a special reason considered.
Social Security Act 1991 - ss. 4(2), 4(3), 4(6), 24(2), 838(1), 1069-H2
Beadle v. Director-General of Social Security (1994) 6 A.L.D. 1; (1995) 6 A.L.D. 670
SECRETARY, DEPARTMENT OF SOCIAL SECURITY v. CHERYL LE-HURAY
VG187 of 1995
Jenkinson J.
Melbourne
17 June, 1996
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG187 of 1995
GENERAL DIVISION )
BETWEEN:SECRETARY, DEPARTMENT OF SOCIAL SECURITY
Applicant
AND: CHERYL LE-HURAY
Respondent
CORAM: Jenkinson J.
PLACE: Melbourne
DATE: 17 June, 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be allowed.
The decision of the Administrative Appeals Tribunal be set aside.
The decision of the Social Security Appeals Tribunal be set aside.
The decision of the applicant's delegate made on 28 December 1993 and affirmed by an authorised review officer on 26 April 1994 be affirmed.
(Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules)
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG187 of 1995
GENERAL DIVISION )
On Appeal from the General Division of the Administrative Appeals Tribunal constituted by Senior Member Mrs J. R. Dwyer and members Associate Professor L. S. Rodopoulos and Mr. C. G. Woodward
BETWEEN:SECRETARY, DEPARTMENT OF SOCIAL SECURITY
Applicant
AND: CHERYL LE-HURAY
Respondent
CORAM: Jenkinson J.
PLACE: Melbourne
DATE: 17 June, 1996
REASONS FOR JUDGMENT
Appeal from a decision of the Administrative Appeals Tribunal that the respondent is not to be treated as a "member of a couple" for the purposes of the Social Security Act 1991.
Section 4 of that Act affords definitions of a number of expressions. Paragraph 4(2)(b) provides:
"Subject to subsection (3) a person is a member of a couple for the purposes of this Act if:
........ ........ ........ ........ ........ .......
(b)all of the following conditions are met:
(i)the person is living with a person of the opposite sex (in this paragraph called the
`partner');
(ii)the person is not legally married to the partner;
(iii)the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsection (3)), a marriage-like relationship;
(iv)both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v)the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961."
Sub-section 4(3) provides:
"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."
Sub-section 4(6) reads:
"A person is not a member of a couple if a determination under section 24 is in force in relation to the person."
Sub-section 24(2) provides:
"Where:
(a)a person is living with a person of the opposite sex (the `partner'); and
(b)the person is not legally married to the partner; and
(c)the relationship between the person and the partner is a marriage-like relationship; and
(d)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act."
The respondent, who was born on 1 January 1960, was married to Jeffrey John Le-Huray between 1982 and 1992. There are living two male children of the marriage, which was dissolved by decretal order of the Family Court of Australia, one born in 1983 and the other in 1989. They live with the respondent under her care and control, in the house which was formerly their parents' home and which has been owned by the respondent since her divorce.
Each of the children is "an FP child of" the respondent, within the defined meaning of that expression in the Social Security Act 1991 : see ss. 5, 831-836. Sub-section 838(1) provides, subject to a condition inapplicable in the circumstances of this case, that a person is qualified
for "family payment", which is a monetary benefit payable to the qualified person as a subvention in respect of the maintenance of FP children, if several conditions specified in that sub-section are satisfied. One condition is that "the person's taxable income for the relevant family payment period does not exceed the person's taxable income ceiling". It is common ground that the other conditions are satisfied in this case. The condition as to the respondent's taxable income would be satisfied if she were not "a member of a couple", within the defined meaning of that expression, for her taxable income is about half the amount prescribed as the taxable income ceiling. But it is provided by s.1069-H2 that, for the purposes of calculating entitlement to family payment, if a person is a member of a couple, the person's taxable income for a tax year includes the taxable income for that year of the person's partner. And the Tribunal concluded that the respondent was at relevant times a member of a couple, and that the aggregate of her taxable income and the taxable income of the other member of the couple, Clive Ashley Parsons, her "partner" in the language of the Act, exceeded the respondent's taxable income ceiling. Neither conclusion was attacked by either party to the appeal. But the Tribunal's further conclusion, reached in exercise of the function conferred by s.24(2), that the respondent is not to be treated as a member of a couple, was the subject of the appeal.
Like the respondent, Mr. Parsons was married for about ten years and has two sons, aged 17 and 15 respectively. His former wife and his sons live in Western Australia. Having paid his former wife "a lump sum" at the time of his divorce in 1987 when he was about to leave Australia, he has since made some payments in respect of maintenance. He gave this evidence to the Tribunal:
"Do you have any maintenance responsibilities for your children?---I don't at the moment. They have - I had some earlier, but we reached a lump sum which I paid to my ex-wife. And if any sort of large costs came up involved with the two boys then I am responsible for the half of them, and the youngest one had some dentistry work done, which was running up close to $4000 and I ended up paying for half of that. And just any school books, and anything - just little general running things, but - no - does that answer it?
Can you remember what year you paid the lump sum?---Well, it would have been back in about '87 when I - I went overseas for five years and I paid a lump sum round about then.
And - - -?---But it wasn't - it is more or less a lump - it was like maintenance in advance if you get what I mean, instead of me - because I was not going to be in the country, so she needed you know an amount of cash to - I think she wanted to buy a new car or some furniture, or something. She wanted to buy it. She needed some money anyway, so instead of me paying her, you know, so much I gave it to her in a lump sum and she can get the things that she needed that - straight away.
Well, does that mean that the agreement to pay half sort of on-going, that is a voluntary thing, or is that in a court order?---Oh, yes - well, no, no, it is a voluntary thing. We - although we are divorced and everything, we have always had a good communication between us. There has never been any - well, there is - maybe possibly a bit of ill feeling, but it hasn't run into - when it comes to the two boys, we have always had a good understanding."
On his return to Australia in 1991 Mr. Parsons came to live in Melbourne where he met the respondent by chance. Until he took up residence in the respondent's home he shared a flat with a friend, each paying half the rent of $140 per week and sharing other outgoings equally. When in January 1992 Mr. Parsons entered into cohabitation with the respondent in her house he brought to the household only a bed and a stereo. He undertook to pay the respondent $70 per week and that is the amount he still contributes. Bicycle riding and bicycle racing are recreations to which Mr. Parsons devotes a good deal of time. He buys vitamin tablets and other dietary supplements, but otherwise the food he consumes at home is purchased at the respondent's expense. He and the respondent own nothing of substance jointly and they have no joint liabilities. There is no pooling of financial resources nor sharing of household expenses, except by the making of a monthly payment at the rate of $70 per week. Neither he nor the respondent owes any legal obligation in respect of the other. Mr. Parsons does his own washing and ironing and makes some contribution to the work of housekeeping and gardening. There was evidence that Mr. Parsons' income after tax had recently been about $20,000 per annum.
The respondent's salary as a primary school teacher and payments by her former husband for the maintenance of their children aggregating $8,400 per annum provide her with an annual income after tax of about $36,000. She is saving as much as she can of the maintenance payments to repay her father a loan which, together with a gift from him, had enabled her to discharge a bank mortgage over her house.
The reasons of the Tribunal for its decision include a meticulous consideration of the circumstances, of the relationship between the respondent and Mr. Parsons, to which regard is directed by sub-section 4(3). At the end of the Tribunal's consideration of the financial aspects of the relationship the Tribunal observed:
"(vi)The statutory declarations
Ms Le-Huray's Counsel tendered in evidence statutory declarations declared on 25 October 1994 by Ms Le-Huray and Mr Parsons. Mr Parsons said they were made because `we wanted to arrange that on the death of either of us, we are separate individuals and financially independent. If we were to separate, and one made claims against the other, we intended to nullify that.' The statutory declarations are in identical terms, apart from the names, and read as follows:
`I, Cheryl Annette LeHuray of 110, Harley St Nth, Knoxfield in the State of Victoria do solemnly and sincerely declare
THAT I, the undersigned agree that in relation to the financial position of my relationship with Clive Ashley Parsons all assets and possessions in his control remain separate to mine.Thus I, Cheryl Annette LeHuray, waiver [sic] any right of claim that may be recognised by law to any assets or possessions of Clive Ashley Parsons currently of 110 Harley St Nth, Knoxfield.'
There was some discrepancy between the evidence of Ms Le-Huray and Mr Parsons as to when exactly it was decided that statutory declarations in such a form would be made. Ms Le-Huray said it was agreed that they would make such declarations at the beginning of their living together. Mr Parsons said they had been discussing them for some months before October 1994. On this point we prefer the evidence of Mr Parsons. We accept the submission of Mr Perdon that, because Ms Le-
Huray was already engaged in seeking to set aside the cancellation of her family payment, for approximately nine or ten months before the statutory declarations were made, not very much weight can be given to them. We do, however, note that they are consistent with other actions of Ms Le-Huray and Mr Parsons which show a decision to keep their financial affairs separate. On the other hand, they also show that Ms Le-Huray and Mr Parsons recognised that in the absence of the statutory declarations their relationship could have been construed as giving each of them a claim against the assets of the other.Conclusion - We are satisfied that the financial aspects of the relationship between Ms Le-Huray and Mr Parsons tend to point to it not being a marriage-like relationship."
At the time when the cohabitation commenced the Social Security Act 1991 (Act No. 46 of 1991) included provisions of the same effect as ss.24(2) and 1069-H2. Neither the respondent nor Mr. Parsons was questioned under cross-examination before the Tribunal as to whether either of them had those provisions in mind when their cohabitation was commencing.
In considering the circumstances specified in sub-paragraph 4(3)(b)(i) the Tribunal observed:
"We accept the evidence that Ms Le-Huray accepts full responsibility for providing care and support of her sons, except that on one afternoon a week, when she has a staff meeting at school, Mr Parsons arranges his affairs so that he can be home in time to look after the boys when they come home from school. He also has assisted the boys with such tasks as setting up a computer. We also accept the evidence of Ms Le-Huray that if she has any disciplinary problems with the boys, or other serious matters, she discusses them and shares
responsibility for the decision-making with the boys' father. If one of the boys is sick Ms Le-Huray's mother will look after him while Ms Le-Huray is at school, and when Ms Le-Huray is away at school camp the boys go to stay with her parents or with their father. We accept the evidence of Mr Parsons that he has a good relationship with Ms Le-Huray's sons and that they get on well together, but that their relationship is more one of friendship than anything else. Mr Parsons said:`I think they see me as their mother's boyfriend.'
Ms Le-Huray said of Mr Parson's relationship with her boys:
`The boys and Clive have built up a very good friendship and respect. The boys see Jeff as their father and are very excited when he comes and will never see Clive as a father.'
We accept the evidence that the boys have a good relationship with their father and see him frequently, and spend at least one night a week with him and attend sporting events with him, and that Mr Le-Huray pays maintenance for his sons and gives them Christmas and birthday presents. We also accept that Mr Parsons is a friend to the boys and has their respect but will never be a father to the boys. In view of that evidence we consider it would be confusing to the boys, if Mr Parsons were to seek to adopt a parental role with them. We are satisfied that his responsibility for providing care and support for the children is nothing more than that of a responsible close adult friend."
Later the Tribunal expressed its conclusions concerning the circumstances specified in paragraph 4(3)(b), thus:
We find that the nature of the household points to the relationship between Ms Le-Huray and Mr Parsons being marriage-like, even though Mr Parsons does not adopt a parental role in regard to Ms Le-Huray's children. We are satisfied that the prime reasons for this is that the children have a close relationship with their father as well as with their mother. We are satisfied that is not an uncommon
situation in a second marriage-like relationship where children of an earlier relationship have close bonds with both their parents. We accept that Mr Parsons devotes a great deal oftime to his cycling, probably more than most people devote to a sport, but we cannot find that to be inconsistent with the existence of a marriage-like relationship. That sort of commitment is required by many sports and does not prevent sportsmen and women being married or having marriage-like relationships."
The Tribunal's conclusion as to whether the condition specified in sub-paragraph 4(2)(b)(iii) was satisfied is expressed in this passage:
"In this matter we find that financial independence was the agreed basis of the relationship, and that the purpose of the agreement was not simply in order to retain entitlement to benefits under the Act. The question is whether it, taken with the other matters discussed in paragraphs 23 and 24 of these reasons, is so significant as to indicate that the relationship between Ms Le-Huray and Mr Parsons is not marriage-like. We have concluded, looking at the totality of the evidence, that although some factors do point in one direction and some in another, on balance the factors point to Ms Le-Huray and Mr Parsons having a marriage-like relationship. The factors which we regard as significant are that Ms Le-Huray and Mr Parsons live in a shared household, the nature of which is marriage-like, that they have a supportive relationship, a strong emotional commitment, an exclusive sexual relationship, some shared social life, and are seen by her parents and some friends as boyfriend/girlfriend or as partners, and travelled together to Western Australia so that Ms Le-Huray could meed MrtParsons' family. We find that the relationship between Ms Le-Huray and Mr Parsons is marriage-like."
The Tribunal then turned to the question whether the determination for which sub-section 24(2) makes provision should be made. After setting out the sub-section the Tribunal's reasons continue:
"31. Mr Maloney, in his written submission, stated:
`This is not a case where the financial separation of the assets and finances of the Respondent and Mr Parsons is said to constitute the special reason for the purposes of s.24(2). The SSAT's [decision] is not based on this ground. Rather it is the circumstances that Mr Parsons does not and in the foreseeable future will not make any contribution for the benefit of the Respondent's children and the consequent hardship which that situation will cause for . . . both the Respondent and her children that makes this case one which is `special' and outside the common run of cases. This case is, therefore, an appropriate one for the exercise of the discretions in s.2(4)[sic] in favour of the Respondent.
The particular circumstances of this case do not involve a circumstance where the Respondent has contrived her situation, financial or otherwise, with Mr Parsons to obtain the family allowance for her family. The possibility that others may seek to employ financial separateness as a ruse to avoid the operation of the income grouping provisions for couples provides no proper basis to take the Respondent's special circumstances outside the operation of s.24(2).'
32. As to its decision to exercise the discretion in s.24(2) of the Act, the SSAT said:
`The Tribunal was concerned that having found that Ms Le-Huray was living in a marriage-like relationship, the persons who would be penalised as a result of this finding are Ms Le-Huray's children. Family payments [sic] is paid for the benefit of children. The Tribunal is mindful of the comments of the Administrative Appeals Tribunal (AAT) in the decision of Re: Mrs B and Director-General of Social Security (1984) 5 ALD 609 where the Tribunal stated, "Clearly the purpose or object of payment of family allowance is to enable the amounts paid to be expended on the maintenance, training and advancement of the children in respect of whom it is granted. It is in this context that decisions under review must be considered". The decision of this Tribunal that Ms Le-Huray is living in a marriage-like relationship means that she does not receive family payments for her two children. The Tribunal has found that Mr Parsons does not regard himself as being responsible for Ms Le-Huray's children. In answer to a question from the
Tribunal, Ms Le-Huray stated that she had not considered raising Mr Parsons' board because she no longer received family payments. Therefore, the Tribunal concluded that its decision would cause hardship for Ms Le-Huray's children. For this reason it considered whether or not it should apply section 24(2) of the Act. This section allows the Secretary to treat a person as not being a member of a couple if there is a special reason. The Tribunal believes that there is a special reason in this case because the only people to be affected by the Tribunal's decision are Ms Le-Huray's children. They are the ones who are disadvantaged by the Tribunal decision. If family payments are not paid to Ms Le-Huray, her children will not receive any support at all from Mr Parsons. Therefore the Tribunal concluded that Ms Le-Huray should be treated as not being a member of a couple because of the special circumstances in this case.'
33. We do not agree with the SSAT that it is the children who `are the only people' who will be affected as a result of a finding that Ms Le-Huray and Mr Parsons are members of a couple. There was no suggestion in the evidence that the family payments were spent directly on the children or that, if they ceased, the children would miss out in any direct way. In fact the evidence of Ms Le-Huray was that the $700 maintenance per month paid by Mr Le-Huray for the boys is placed in a term deposit credit account and used for things like maintenance of the house and the remainder saved to pay back to Mr Baker, who lent Ms Le-Huray money to pay off the mortgage. The evidence of Mr Baker was that, out of his superannuation, he had paid off the mortgages of both his daughters partly as a gift and partly as an interest free loan. He said that there was no pressure from him for the repayment of that money from either of his daughters. On this evidence we consider that it is not correct to say that `the only people to be affected by the Tribunal's decision are Ms Le-Huray's children'. We are satisfied that, in all cases concerning family payment, there would be at least as direct a connection between the child's welfare and family payment as there is in this matter. Thus we do not consider that the effect of a loss of family payment on the children of Ms Le-Huray can be `a special reason in the particular case'.
34. However it seems to us that there is a special reason in this matter why Ms Le-Huray should not be treated as a member of a couple in respect of family payment. The father of the children is present, supports them by
monthly payments of maintenance, and plays an important role in their lives. He is their father and the only father figure in their lives. We do not think it appropriate that Mr Parsons should be treated as responsible for the financial support of the children, whatever may be his responsibility for the support of Ms Le-Huray, if she should cease to be employed. It was on the understanding that he would not be expected to undertake responsibility for the boys that Mr Parsons moved in with Ms Le-Huray. We therefore consider that s.24(2) can be used for the special reason that the basis of the relationship between Mr Parsons and Ms Le-Huray has always been that he is her partner,but that he does not in any way stand in the position of a father to her children, who are in frequent contact with, and supported by, their father. We think it would be inappropriate for the Tribunal or the Secretary of the Department of Social Security to interfere with the relationship between the boys and their father, by requiring another man to undertake financial responsibility for them."
After making some observations about the difficulties which the legislation it had been considering raised, the Tribunal affirmed the decision of the Social Security Appeals Tribunal.
It would appear that the Tribunal found "special reason" for not treating the respondent as a member of a couple in the circumstance that, unless she were not to be so treated, Mr. Parsons would be treated as responsible for the financial support of the children if she should cease to be employed. (I have taken the circumstance supposed in the fourth sentence of paragraph 34 of the Tribunal's reasons - "if she should cease to be employed" - to qualify the principal clause of the sentence because the apparently parenthetical reference to Mr. Parsons' responsibility for the respondent's support is placed between commas, and because in paragraph 33 of its reasons and elsewhere in those reasons the Tribunal had expressed findings quite inconsistent with any supposition that Mr. Parsons was in fact bearing any responsibility for the children's support.) The only sense in which Mr. Parsons might be said to be "treated as responsible for" the children's support in the circumstance supposed is that s.1069-H2 may be thought to have been enacted in the expectation that the taxable income of a partner will be, after deduction of income tax therefrom, available for application in support of the "FP children". The failure to make the determination for which s.24(2) makes provision may therefore be conceived as an administrative endorsement of that legislative expectation. The final sentence of paragraph 34 of the reasons is perhaps consistent with such an understanding as I have indicated of the fourth sentence, although the suggestion in that final sentence that the failure to make such a determination would be "requiring" Mr. Parsons to undertake financial responsibility for the respondent's children is, if understood literally, quite different from the suggestion that such a failure would be treating him as responsible for their support.
The respondent had not ceased to be employed at the time the Tribunal made its decision. There was no evidence to suggest that she might soon cease to be employed. The Tribunal's findings in paragraph 33 and elsewhere in its reasons preclude any supposition that a need of financial subvention by Mr. Parsons, beyond what was occurring, had been, or would soon be, occasioned by lack of family payment to the respondent, in order that proper care and support be provided by the respondent to her children. If it be assumed, without deciding, that the existence of such a need, so occasioned, might justify satisfaction that the respondent "should, for a special reason in the particular case, not be treated as a member of a couple", the mere possibility that such a need might in the future exist cannot in my opinion justify such a present satisfaction. The power conferred by s.24(2) is exercisable as and when the circumstances of the particular case attract its exercise, just as the power is to be construed as including a power to revoke the instrument in writing by which the power has been exercised : see the Acts Interpretation Act 1902 (Cth), ss. 33(1), 33(3).
The references in paragraph 34 to the role of the children's father in their lives, and to the interference with the relationship between him and them which it is suggested a requirement that Mr. Parsons support them would work, in my opinion demonstrate a separate error of law. The legislative scheme of subvention for dependent children in the care and under the control of a person who is in a marriage-like relationship with a partner to whom he or she is not legally married does not disclose any legislative intention either to foster or to impair the development or the maintenance of the emotional or economic relationship between the dependent children and a parent who is not in a marriage-like relationship with that person, in my opinion. It is conceivable that circumstances might exist in which the objective of fostering a relationship between such a parent and his or her child would play a part in engendering the satisfaction required by paragraph 24(2)(d). But there is disclosed neither by the findings of the Tribunal nor by the evidence any reason to suppose that in the particular circumstances of this case the relationship between these children and their father was, or will in the immediate future be, impaired by the applicant's refusal to make the determination for which sub-section 24(2) provides. The suggestion that interference with the relationship between these children and their father will be occasioned by requiring Mr. Parsons to undertake financial responsibility for them has, at present or in the next few years of their dependency, no justification in the Tribunal's findings or in the evidence. In law the failure to make the determination imposes no such a requirement. Neither the evidence nor any finding by the Tribunal suggests that Mr. Parsons will in fact undertake such a responsibility, or that while the respondent continues in her present employment he will increase his economic contribution to the maintenance of the household of which the children are members.
If, contrary to my understanding of the fourth sentence of paragraph 34, the concluding clause was intended to qualify only the parenthetical observation, "whatever may be his responsibility for the support of Ms. Le-Huray, the conclusion that the Tribunal's satisfaction in terms of sub-section 24(2) is flawed by error of law is unaffected, in my opinion. Although s.1069-H2 was no doubt enacted in the expectation that the income of a partner will be available for application in support of the "FP children", the disappointment of that expectation, in a particular case, cannot of itself constitute special reason for not treating the person having the care and control of the children as a member of a couple for the purposes of the Act, in my opnion. There must be in the circumstances of the particular case some harm, or risk of harm, to the welfare of the children, or, perhaps, of the person having their care and control, attendant upon abstention from exercise of the power conferred by sub-section 24(2) before special reason can be found, in my opinion. Here neither the findings nor the evidence disclosed any such harm or risk of harm, in my opinion.
Counsel for the respondent submitted that, when the reasons for the Tribunal are considered as a whole, and without indulgence in censorious conning of particular passages, it is to be concluded that the Tribunal thought that the financial arrangements between the respondent and Mr. Parsons constituted a special reason why their taxable incomes should not be aggregated for the purpose of what was essentially a test of the respondent's means. It was submitted that the Tribunal's judgment as to what could constitute "a special reason in the particular case" involved the exercise of a wide discretion to give effect to its view of the justice of the case and that no error of law was involved in the Tribunal's view. Reliance was placed on what Dixon C.J. said of the exercise of a power to extend the time to institute legal proceedings "if [the judge] is satisfied that sufficient cause has been shown, or that having regard to all the circumstances of the case, it would be reasonable so to do". In a judgment in which the other two members of the court concurred, the Chief Justice said, in Klein v. Domus Pty. Ltd. 1963) 109 C.L.R. 467 at 473:
"This Court has in many and diverse connexions dealt with discretions which are given by legislation to bodies, sometimes judicial, sometimes administrative, without defining the grounds on which the discretion is to be exercised and in a sense this is one such case. We have invariably said that wherever the legislature has given a discretion of that kind you must look at the scope and purpose of the provision and at what is its real object. If it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the enactment, that vitiates the supposed exercise of the discretion. But within that very general statement of the purpose of the enactment, the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case."
It is in my opinion clear that the "scope and purpose" of sub-section 24(2) is to enable the welfare of dependent children by family payment subvention to be advanced in circumstances where the application of s.1069-H2 would not advance, but would impair their welfare. The findings of the Tribunal and the evidence preclude, in my opinion, a conclusion that the application of s.1069-H2 would impair the welfare of the respondent's children at the present time. The actuating reason for the Tribunal's decision - as that reason was propounded by counsel for the respondent - is plainly outside the scope and purpose of the enactment.
The suggestion that a discretionary judgment is involved in the exercise of the power conferred by sub-section 24(2) may be accepted, provided that the discretion is understood to be exercisable with regard to the purpose for which the power is given. Further, in considering the meaning of the phrase "special reason", regard to what Toohey J. said in Beadle v. Director-General of Social Security (1984) 6 A.L.D. 1 at 3 - that, to be "special", circumstances "must have a particular quality of unusualness" - should be tempered by an even more careful regard to what the Full Court of this court said on the appeal in those matters - that Bowen C.J., Fisher and Lockhart JJ. would place less emphasis than did Toohey J. on what is only one of the several meanings of the word "special" which a dictionary affords : Beadle v. Director-General of Social Security (1985) 6 A.L.D. 670 at 675.
It was a ground of appeal, and the subject of submission, that error of law was disclosed by the circumstance that considerations to which regard was had, pursuant to sub-paragraph 4(3)(b)(i), in forming an opinion whether the relationship between the respondent and Mr. Parson was "a marriage-like arrangement" - that is, considerations deriving from the absence of joint responsibility for providing care and support of children - were accorded significance in reaching the conclusion that there existed a "special reason in the particular case" that the respondent should not be treated as a member of a couple. The submission, as I understood it, was that something required by sub-section 4(3) to be accorded consideration in forming that opinion could not be characterised as - or be considered part of - such a special reason.
It is unnecessary to express a concluded opinion about the submission. As at present advised, I am unable to accept it.
In my opinion only one conclusion was in law open to the Tribunal on the review it conducted. Accordingly the appeal will be allowed, the decision of the Tribunal set aside and it will be ordered that the decision of the Social Security Appeals Tribunal be set aside and that the decision of the applicant's delegate made on 28 December 1993 and affirmed by an authorised review officer on 27 April 1994 be affirmed.
I certify that this and the 20 preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Jenkinson.
Associate
Dated: 17 June, 1996
VG187 of 1995
Counsel for the Applicant : Mr. C. Gunst
Counsel for the Respondent : Mr. B.D. Bongiorno Q.C. and Mr. A.L. Cavanough
Solicitor for the Applicant : Australian Government Solicitor
Solicitor for the Respondent : Mallesons Stephen Jaques
Date of Hearing : 26 May, 1996
Date of Judgment : 17 June, 1996
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