Fokas v Secretary, Department of Family & Community Services [2002] FCAFC 388 (19 November 2002)

Last Updated: 28 November 2002

FEDERAL COURT OF AUSTRALIA

Fokas v Secretary, Department of Family & Community Services [2002] FCAFC 388

MARIA FOKAS v SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

N 425 of 2002

WHITLAM, EMMETT and STONE JJ

19 NOVEMBER 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 425 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MARIA FOKAS APPELLANT
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT
JUDGES:	WHITLAM, EMMETT and STONE JJ
DATE OF ORDER:	19 NOVEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant pay the respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 425 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MARIA FOKAS APPELLANT
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT

JUDGES:	WHITLAM, EMMETT and STONE JJ
DATE:	19 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WHITLAM J:

1 I agree with Emmett J.

EMMETT J:

2 This is an appeal from an order made by a judge of the Court dismissing an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 from a decision of the Administrative Appeals Tribunal ("the Tribunal") affirming a decision of the Social Security Appeals Tribunal. That tribunal affirmed a decision by an authorised review officer in respect of an application made by the appellant for a widow B pension under the Social Security Act 1991 ("the Act").

3 The appellant, Mrs Maria Fokas, made a valiant and sterling effort to find the way through the maze of the Act in order to justify an entitlement to a widow B pension. Mrs Fokas bases her claim on s 362(1)(a)(i) of the Act. Section 362(1)(a) provides that a woman is qualified for a widow B pension if the woman satisfies one of three criteria and satisfies the other criteria set out in s 362(1). Section 362(1)(a)(i) provides that, in order to be qualified, she must demonstrate that, immediately before 1 July 1987, she was receiving a widow's pension as a class B widow under the Social Security Act 1947 ("the 1947 Act").

4 Mrs Fokas was, in fact, receiving a widow's pension before 1 July 1987. The question, however, is whether she was receiving a widow's pension "as a class B widow under the 1947 Act". The term "class B widow" was defined in s 59(1) of the 1947 Act as a widow specified in s 60(1)(b) of that Act. Up until the passing of the Social Security and Veterans' Entitlement Amendment Act 1987 ("the 1987 Act"), s 60(1)(b) provided for:

"a widow who has not the custody, care and control of any child and -

(i) is not less than fifty years of age; or

(ii) having been in receipt of a pension as a widow referred to in the preceding paragraph, has, after having attained the age of forty-five years, ceased to receive that pension by reason of the fact that she no longer has the custody, care and control of a child ..."

5 As at the commencement of the 1987 Act, Mrs Fokas did not satisfy that requirement. Following the passing of that Act, the definition in s 60(1)(b) of the 1947 Act was amended so as to resemble the language of s 362(1)(a) of the Act. In particular, s 60(1)(b)(i) required that in order to qualify the widow must show that she was, immediately before 1 July 1987, receiving a widow's pension and was a class B widow.

6 The determination of the Tribunal was that Mrs Fokas was not entitled to a pension by reason of the operation of s 362(1)(a)(i) for the reasons that I have just indicated. That is to say, she was not, immediately before 1 July 1987, receiving a widow's pension as a class B widow. The other requirements in s 362(1)(a) were also not satisfied in the sense that in order to qualify, Mrs Fokas would have needed to establish that she had turned forty-five years old by 1 July 1987. However, she had not, having been born on 12 December 1946.

7 Mrs Fokas also relied on s 362A(1) of the Act which provides that, in spite of anything else in the relevant part of the Act,

"... a widow B pension must not be granted to a woman unless:

(a) the woman's claim for the pension is lodged before 20 March 1997; and

(b) the woman is qualified for the pension before that day."

8 Mrs Fokas drew heavily on s 362A(2) which provides that:

"If section 366(2) applies to a woman, the woman is taken, for the purposes of [s 362A(1)], to have a lodged a claim on the day on which the initial claim was made."

However, that does not take the matter any further. Section 362A is an additional prerequisite for qualification for a widow B pension. Even if Mrs Fokas is able to establish that s 362A(1) does not prevent her from qualifying for a widow B pension, she still does not satisfy the requirements of s 362(1).

9 It follows that there was no error of law on the part of the Tribunal and the primary judge was correct for the reasons that his Honour gave in dismissing the appeal from the decision of the Tribunal. In my view, the appeal should be dismissed with costs.

STONE J:

10 I also agree with Emmett J.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court

Associate:

Dated: 28 November 2002

The appellant appeared in person.

Solicitor for the respondent:	Mr G J Peek of the Australian Government Solicitor.
Date of hearing:	19 November 2002
Date of judgment:	19 November 2002