Re James Leslie Lynam v Director-General of Social Security [1983] FCA 249 (10 October 1983)

FEDERAL COURT OF AUSTRALIA

Re: JAMES LESLIE LYNAM
And: DIRECTOR-GENERAL OF SOCIAL SECURITY
No. QLD G50 of 1983
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Fitzgerald J.

CATCHWORDS

ADMINISTRATIVE LAW - Social Security Act - whether woman living with applicant as his wife on a bona fide domestic basis although not legally married to him - importance of financial arrangements in determining nature of relationship.

Social Security Act, 1947, ss. 106(1), 114(1A), 114(3)

Administrative Appeals Tribunal Act, 1975, s.44

HEARING

BRISBANE
10:10:1983

ORDER

1. The appeal is allowed.

2. The matter be returned to the Tribunal for re-consideration with liberty to receive further evidence if appropriate.

3. The respondent to pay the taxed costs of and incidental to this appeal.

DECISION

This is an appeal from the Administrative Appeals Tribunal on a question of law. The Tribunal upheld a departmental decision by which, on 19 September 1981, the unemployment benefit which the applicant was receiving was cancelled. The Tribunal's decision was delivered on 5 July 1983.

At the time of the decisions of the Department and the Tribunal, the applicant, who is now about 49 years of age, shared a residence with a Mrs C. with whom he first became acquainted in the early 1960's. The applicant lost his unemployment benefit because Mrs C. is in employment and her income has been treated as income of the applicant for the purpose of sub-s. 114(1A) of the Social Services Act 1947 as amended ("the Act") by the operation of sub-s. 114(3) of that Act. The correctness of that view depends upon whether or not Mrs C. is "the spouse" of the applicant as defined in s.106(1) of the Act, which in turn depends upon whether or not, within the meaning of that provision, Mrs C. is a "dependent female", a term which is, in the circumstances of this case, singularly inappropriate, and which I suspect is in any event offensive to many people. Mrs C. is only a "dependent female" within the meaning of sub-s. 106(1) of the Act if she is living with the applicant "as his wife on a bona-fide domestic basis although not legally married to him".

The evidence may be summarized from the careful decision of the member who constituted the Tribunal in which it is set out more fully.

After the applicant and Mrs C. first became acquainted, there was only intermittent contact between them until, in 1974, the applicant returned to Brisbane from Melbourne and boarded at a guest house where Mrs C. was working as a domestic. The applicant stayed at the guest house on three occasions in 1974 and 1975. In 1976, he became the tenant of part of a house at West End, a suburb of Brisbane. Several people resided with the applicant in these premises, including a Mr McN. and Mrs C. who stayed there regularly for 3 or 4 nights a week.

In 1976 or 1977, the applicant, Mrs C., and Mr McN., purchased a house at Highgate Hill, another suburb of Brisbane. The applicant contributed $6,000, Mrs C. contributed $5,000, and Mr McN. contributed $9,500, and these amounts were sufficient to meet the total purchase price. The house was purchased in the names of all three as joint tenants. Each occupied a separate bed in a different part of the house and the arrangement between them was that the cost of running the house and food costs would be shared equally between them. Initially, the applicant and Mrs C. were employed but Mr McN. was not, and for a time Mr McN. did not meet his commitments, although he later made some contribution. Mr McN. left the house in 1978 after some disagreement with the applicant and has not returned, although he still retains his interest in the property. Since Mr McN'.s departure the applicant and Mrs C. have been the sole occupants of the house. They occupy separate bedrooms and deny that there has ever been any sexual relationship between them. Following Mr McN.'s departure, expenses were shared equally between the applicant and Mrs C. until the applicant, who has been unemployed since October 1979, had his unemployment benefit cancelled in September 1981.

Mrs C. was not supporting the applicant prior to the cancellation of his unemployment benefit, but, since that time, has done so. She pays all the household expenses and, if the applicant goes into town she gives him money. She also buys him tobacco every Monday. There is no jointly owned property other than the house.

Mrs C. works 7 days a week leaving home at about 5 a.m. and returning in the late afternoon. The applicant usually does the house-cleaning. They eat together only infrequently, on which occasions either might do the cooking. They have been out together socially only on one occasion, to a race meeting. They have very little contact with neighbours. They are friends but the relationship is strained. The applicant and Mrs C. both seem to accept that there is no alternative to their current position; that he cannot afford to leave, that Mrs C. cannot afford to buy his interest in the house, and that Mrs C. has no option but to support him while he is there and is unable to support himself, particularly because he is a joint owner.

The Tribunal member referred to a number of decisions of the Tribunal and also the decision of the Full Court of this Court in Lambe v. The Director-General of Social Security (1981) 38 A.L.R. 405, which he discussed at some length. He distinguished those decisions on the basis that they were concerned with the qualifying requirements for a benefit under the Act whereas the question of the relationship between the applicant and Mrs C. in this case arises in connection with the rate of benefit, if any, which is payable to the applicant who, on any view, meets the qualifying requirements. This distinction was then used as the basis for a conclusion that "when considering, in the present context, the phrase 'a woman who is living with a man as his wife on a bona fide domestic basis although not legally married to him' the needs of the applicant are of crucial significance". The Tribunal then went on to refer to the "financial inter-dependence" between the applicant and Mrs C. up until the time when the applicant lost his unemployment benefit and the applicant's total dependence upon Mrs C. thereafter and concluded, by reference to their financial arrangements including the joint ownership of the property, that there was a "bond between them of a kind usually found in a marriage relationship". Accordingly, the Tribunal considered that, in all the circumstances, Mrs C. should be considered as the spouse of the applicant.

Regrettably, I have the misfortune to disagree with the Tribunal. I am convinced that the Tribunal's decision involved an error in law.

In Lambe, supra, the Full Court expressly rejected the proposition that an absence of adequate financial support was of determinative significance in deciding whether an applicant for a supporting mothers benefit under Part IVAAA of the Act was a "supporting mother" within the definition of s.83AAA of the Act, which requires, inter alia, that she not be a woman who is "living with . . . a man as his wife on a bona fide domestic basis, although not legally married to him". No difference of approach under the presently relevant different provisions of the Act is warranted either by material change of context, ordinary principles of construction, or the reasoning of the Full Court which proceeded in part by reference to terminology similarities to be found scattered throughout the legislation. In particular, I am unable to agree that the distinctions sought to be drawn by the Tribunal afford a legitimate basis for the adoption of any different approach.

The question here as it was in Lambe's Case is whether the relationship between a man and woman who are not legally married is such that they are living together as husband and wife on a bona fide domestic basis. In Lambe, the Full Court said that all facets of their interpersonal relationship need to be taken into account and that their financial relationship, although important, is only one of a number of relevant matters. I am unable to perceive how any difference of approach is warranted in the context in which it arises in this case. I decline the request for the applicant that I embark upon a more far-reaching review with a view to adopting a different approach. In particular, I observe that, in my opinion, the present test does not ignore the parties' intention although no doubt it emphasises visible objective criteria as the foundation for inferred intention.

It is easy to see that an absence of financial support may, in some circumstances, afford evidence that the relationship in question does not exist, although, of course, even in institutional marriage, there have always been a wide variety of financial arrangements and it seems a reasonable inference that increased flexibility has resulted from the greater financial independence now enjoyed by many women and the less structured roles which the sexes play in current society in this country.

Financial arrangements cannot be taken in isolation and considered of particular importance in determining the nature of relationship. Their materiality, like each of the other elements of the relationship, stems from the impact which they have as part of an overall situation. Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.

It seems futile to deny that subjective views as to what are involved as basic attributes of the marriage relationship will intrude into the assessment called for. However, it is in my view important that the departmental officers or tribunals charged with the task at least take into account what is the norm for the peer group of the applicant. Only in this way can the legislation be fairly and justly accommodated to a multi-racial and otherwise diverse society.

It is possible to imagine a marriage with the characteristics revealed by the evidence before the Tribunal in this case. It does not follow that that is the only conclusion. It goes too far to assert or assume that which might otherwise be regarded as merely charity or necessity is, as between unrelated members of the opposite sex, a sure or safe indicator, of the existence of a special relationship akin to marriage. Although the Tribunal noticed other matters, plainly the financial position was allowed to play a dominant role to the substantial exclusion of other considerations because that was thought to be required not on the particular facts but by the statutory context in which the Act fell for application.

Nonetheless, it is not appropriate for me to substitute my own view for that of the Tribunal, nor does the Notice of Appeal ask that I do so. I have summarized the facts by reference to the Tribunal's decision, but it does not appear with any clarity that the Tribunal made findings in those terms as distinct from reciting that there was evidence to that effect. Further, as I have pointed out above, the question is one of fact and degree and it cannot be said that, depending on what findings are ultimately made, the Tribunal could not arrive at a conclusion that the statutory test has been satisfied. For example, the Tribunal might not accept the denials by the applicant and Mrs C. that they enjoy or have ever enjoyed a sexual relationship and the disbelief of that evidence might, in the circumstances, provide a basis for an inference to the contrary.

In my opinion the appeal must be allowed with costs to be taxed and the matter must be returned to the Tribunal for re-examination.