Hallak and Secretary, Department of Social Security [1990] AATA 354 (2 February 1990)

Last Updated: 30 May 2008

ADMINISTRATIVE APPEALS TRIBUNAL

DECISION AND REASONS FOR DECISION

SOCIAL SECURITY Supporting Parent's Benefit – matrimonial relationship - period of separation after marriage – entitlement in that period to benefit - couple in matrimonial relationship although temporarily separated - decision affirmed

words and phrases - "unmarried person"

words and phrases "living separately and apart"

Social Security Act 1947 sections 3, 53

ADMINISTRATIVE AFTEALS TRIBUNAL )

) No. N89/506 GENERAL ADMINISTRATIVE DIVISION )

AAT Decision No 5660

Re: MOHAMAD HALLAK

Applicant

And: THE SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY

Respondent

DECISION

Tribunal : Dr R.A. Hayes, Senior Member

Date : 2 February 1990

Flace : Sydney

Decision : The decision under review is affirmed.

(Sgd) R.A. Hayes

Senior Member

ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N89/506
GENERAL ADMINISTRATIVE DIVISION )

Re: MOHAMAD HALLAK

Applicant

And: THE SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY

Respondent

REASONS FOR DECISION

2 February 1990 Dr R.A. Hayes, Senior Member

This was an application for a review of a decision of the Social Security Appeals Tribunal affirming the respondent's decision to raise and recover an overpayment of Supporting Parent's Benefit amounting to $3,241.60 for the period 4 February 1988 to 12 May 1988.

Mr Hallak's first wife died in 1985, and he later claimed Supporting Parent's Benefit, his application being granted from 25 June 1987. On 20 December 1987 he left Australia for Lebanon and on 5 February 1988 he returned to Australia, having remarried in Lebanon on 28 January 1988. It was not until 2 May 1988 that Mr Hallak notified the Department in writing that he had been married three months previously. He claimed in evidence before the Tribunal to have given the Department verbal advice of his marriage soon after his return to Australia.

Mr Hallak told the Tribunal that he went to Lebanon to find a woman suitable to take care of his children, intending to Marry. He spent the first twenty days looking for an appropriate person but could find no-one. He had almost given up hope but found someone in the last ten days. A translation of the copy extract from the Register of Marriage issued by the Republic of Lebanon, which was in evidence, confirms that the marriage took place on 28 January 1988. The marriage was not consummated until after Mr Hallak's new bride joined him in Australia, having satisfied the Australian Government's immigration requirements, on 25 May 1988. Between 5 February and 25 May 1988 the Applicant's wife wrote to him and he telephoned her.

Mr Hallak ceased to be an unmarried person on 28 January 1988, and thus would appear to have ceased to be a "supporting parent" within the meaning of that term in sub-section 53(1) of the Social Security Act 1947 ("the Act"). However, there is also a definition of "unmarried person" in s.53 which, so far as is relevant, is as followst

"unmarried person" means -

....

(c) a married person who is living separately and apart from his or her spouse...".

It may be noted that to be an "unmarried person" within this definition, a married person does not have to be living separately and apart from his or her spouse "on a permanent basis". This can be contrasted with the definition of "married person" to be found in sub-section 3(1) of the Act, which provides (in part):

"married person" includes a de facto spouse but does not include -

(a) a legally married person (not being a de facto spouse) who is living separately and apart from the spouse of the person on a permanent basis...".

The evidence shows that Mr Hallak had not commenced living with his new wife in his few remaining days in Lebanon after their courtship. He almost immediately returned to his home in Sydney, and his wife remained in her home in Lebanon. During the period of their separation by distance and the requirements of Australia's immigration laws, Mr Hallak was a "married person". But was he "living separately and apart" from his spouse?.

It was strongly argued by counsel for Mr Hallak that the phrase "living separately and apart" ought to be given its ordinary meaning, which was perfectly plain. Mrs Hallak was living in Lebanon over the relevant period. Mr Hallak was living in Sydney. There could be no clearer case of married people living separately and apart, it was urged. But absurd consequences would flow from allowing a married person to qualify for Supporting Parent's Benefit in the common-place situation of a partner moving away for a temporary period, to work overseas, to tend to sick relatives interstate, to enjoy an extended holiday in distant climes, or whatever. The phrase, in the context in which it appears, is manifestly designed to invite attention to what is not common-place between a married couple (although according to the mass media, rapidly becoming so), of a matrimonial relationship having broken down. The breakdown does not have to have been permanent under the provision. Marriages can break down and subsequently be repaired. The provision recognises this. The decision-maker under Section 53(1) does not have to inquire into future prospects. He or she simply has to look at whether, at the time of application, the married couple who are living apart are doing so in circumstances where the matrimonial relationship has for the time being ceased. In other words, the phrase, "living separately and apart" does not have the ordinary meaning which Mr Hallak's counsel asserted for it, but rather, invokes the legal concept of "consortium vitae".

The absence of sexual activity does not of itself destroy consortium vitae. In this case, a sexual relationship had not begun between Mr Hallak and his new wife. But this was a new marriage. The couple had made their plans - Mr Hallak was to return immediately to Australia, and Mrs Hallak was to join him in Sydney as soon as she could - and they proceeded to implement them. She wrote to him and he telephoned her. On their marriage, there was sufficient between them to say that consortium vitae had begun; and it continued, notwithstanding the absence of sexual activity, over the period under review.

I could find nothing on the whole of the evidence before me which would justify any finding that the Department had failed in any way in its ministrations to Mr Hallak. I specifically find that the first notification that the Department received from Mr Hallak about his marriage was on 2 May 1988, when he returned a 12 weekly review form in which he stated that he had been married three months ago.

Counsel for Mr Hallak expressly eschewed any reliance on an argument that, over the relevant period, Mr Hallak was notionly entitled to unemployment benefit which would effectively expunge any debt that he might owe to the Department. Nevertheless, 1 proceeded to review the evidence before me on this question, both through the transcript, and the documents provided under Section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). There is nothing therein which would enable me to make any finding on the reasonableness of any efforts by Mr Hallak to obtain work over this period. While a power in the Tribunal to make recommendations to the Secretary only exists on setting aside the decision under review (Section 43(1) of the Administrative Appeals Tribunal Act 1975) , it nevertheless seems appropriate to endorse the Social Security Appeals Tribunal's expression of hope that the Department might wish to investigate this question further (T documents, page 4.4).

Counsel for Mr Hallak also foreswore reliance upon any argument that the deductions being made from Mr Hallak's present benefit in order to recoup the overpayment were causing hardship, and ought to be waived or reduced. There was no evidence before me of any hardship, and indeed, the evidence suggested that none exists.

Accordingly, my decision will be to affirm the decision under review. Deductions at the rate applying at the date of the hearing, suspended by consent at the conclusion thereof until a decision could be handed down, should recommence from the next payment date.