Boscolo v Secretary, Department of Social Security

Federal Court of Australia|1997-03-10|Before: French J

Introduction 1 Mario Boscolo an Italian immigrant is in receipt of the Age Pension. Since 12 January 1996 he has been married to Rosalina Rodrigo and has been paid an Age Pension at the married rate. However for a number of months in 1996 and 1997 Mr Boscolo lived in Sydney in order to finalise and resolve issues relating to the custody of David, a son by his first marriage. From the facts of the case he had little choice but to live in Sydney for the purposes of dealing with the outstanding family issues arising from his first marriage. 2 The question for determination in this case is whether his living apart for that period of some months from his second wife entitles him to be paid for that period at the single rather than the married rate of Age Pension. This in turn depends upon whether the Secretary of the Department is satisfied that Mr Boscolo should, for a special reason in his particular case, not have been treated as a member of a couple for the period that he was living in Sydney.

Factual History 3 Mario Boscolo was born in Italy and migrated to Australia in 1951. He has lived in Western Australia since that time although he has spent substantial periods out of the State mainly in Sydney in recent years. 4 In February 1976 Mr Boscolo married his first wife, Sylvia, and they lived together in his home at Mill Street, Como. In 1982 she moved to Sydney where she commenced studying. She was receiving government assistance at an "away from home" rate. Mr Boscolo continued to live in Western Australia. In mid 1989 they separated and Family Court proceedings began between them with an ex parte order obtained by Sylvia under which Mr Boscolo was excluded from the home in which she resided in Sydney. They attempted to reconcile the marriage and on 11 October 1991 Sylvia gave birth to their youngest child, David. Mr Boscolo was still living in Western Australia and Sylvia in Sydney. 5 In April 1993 Sylvia was granted custody of David and in August 1994 a decree nisi for the dissolution of their marriage became absolute. On 18 December 1995 Mr Boscolo was granted custody of David by order of the Family Court of Australia, but it was a condition of that order that he be restrained from changing the permanent place of residence of the child from the Sydney metropolitan area. 6 On 17 December 1995 Rosalina Rodrigo arrived in Sydney from the Philippines and on 12 January 1996 Mr Boscolo married her. He brought her back to Western Australia in March 1996 with David. Before he returned to Western Australia he had legal advice that the Family Court order would not prevent him from changing his own place of residence by returning to Western Australia. Nor was the child prevented from being temporarily resident outside Sydney provided that his permanent place of residence was not changed until further order. When he arrived back in Western Australia Mr Boscolo started proceedings in the Family Court which would allow David to reside with him permanently outside Sydney. He tried to meet the Family Court's orders and returned to Sydney to comply with requirements for David's psychological assessment. He returned with David in June 1996 under compulsion of the Family Court following an order which Sylvia obtained requiring him to return the child to Sydney. In November 1996 the Court made further orders that Mr Boscolo be permitted to reside outside New South Wales with David and that each party have liberty to apply in relation to contact with David by Sylvia after twelve months from the date of those orders. 7 During each of these absences in Sydney Mr Boscolo's wife Rosalina, resided at their Western Australian home in Mill Street, Como. Her reasons for doing so were that: 1. As a recent migrant to Australia her friends and support network were located in Perth. 2. She was actively seeking work as a seamstress and receiving Newstart allowance. 3. She was enrolled in and attending a course in English. 4. She was obtaining part time work in Perth. 5. She was awaiting the expected arrival of her own son from overseas who would be travelling to Perth. 8 In December 1996 Mr Boscolo returned to Perth. In February 1997 he went back to Sydney to attend a number of court hearings including taxation of his Family Court solicitors' costs, a Magistrates court matter as well as an appeal by Sylvia against the Family Court orders allowing the child to be removed from Sydney and denying access to her. He came back to Western Australia in August 1997 and has remained here since that time. 9 The Family Court made findings strongly adverse to Sylvia. She was found to have seriously undermined the relationship forming between David and his father and to have mistreated David while he was in her care. It was also apparent from the judgment of the Family Court that while Mr Boscolo and his son were in Sydney Sylvia subjected them to significant harassment which made it most undesirable for him to remain there with the child. However the Family Court required them to return to Sydney with David while proceedings were concluded. Ultimately it found it was in David's best interests to be in Perth and away from his mother for a significant period and with no contact with her. These bland words do little justice to the reality of the difficulties experienced between Mr Boscolo and David on the one hand and Sylvia Boscolo and David's siblings on the other. There was evidence of neglect and abuse in relation to David and subsequently considerable provocation directed at Mr Boscolo to which he reacted with grace and dignity. 10 At the time of his marriage to Rosalina, Mr Boscolo was in receipt of an age pension. Rosalina was in receipt of Newstart allowance. Mr Boscolo applied to the Department of Social Security for payments of his and his wife's social security benefits at the single rate for those periods when he had to be in Sydney. In September 1996 the position was reviewed by the Department and it was decided they should be paid at the married rate regardless of whether Mr Boscolo was in New South Wales or Western Australia. The Department decided there had previously been an overpayment to both Mr Boscolo and Rosalina but waived this on the grounds of departmental error. 11 Mr Boscolo sought further review of the decision on 11 November 1996 by an Authorised Review Officer but on 29 November 1996 that officer confirmed that the married rate was the correct entitlement. Mr Boscolo then appealed to the Social Security Appeals Tribunal and his wife, Rosalina, was joined as a party to his appeal. On 29 July 1997 the Social Security Appeals Tribunal decided to affirm the decision of the Authorised Review Officer. Thus, Mr Boscolo's application to the Tribunal failed. He then appealed against that decision to the Administrative Appeals Tribunal (the Tribunal). 12 On 4 February 1998 the Tribunal affirmed the decision under review. Mr Boscolo now appeals against the Tribunal's decision.

Statutory Framework 13 The relevant provisions are those contained in s 24(1) of the Social Security Act 1991 (Cth) which provide: "24(1) Where: (a) a person is legally married to another person; and (b) the person is not living separately and apart from the other person on a permanent or indefinite basis; and (c) 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 Tribunal's Decision 14 The Tribunal set out the factual history which is summarised earlier in these reasons. It accepted that Mr Boscolo's concerns in relation to David and his very real and immediate need to remove him from Sydney were justified. The Tribunal was focussing on the question of Mr Boscolo's entitlement to the single rate of pension during the period June 1996 until December 1996. Mr Boscolo was also seeking single rate pension for the period February 1997 to August 1997 but that was not part of the application and did not form part of the proceedings. The Tribunal accepted that Mr Boscolo took David away from Sydney for very good reasons early in 1996 and when ordered by the Family Court to return him to Sydney in June 1996 he decided to stay there with David again for very good reasons. The Tribunal felt that Mr Boscolo should be congratulated for focussing on the welfare of his four or five year old child at the commencement of his new marriage. At par 11 of its reasons it said: "The options facing the applicant and his new wife then were whether or not she should go to Sydney also and if she did whether she should make other arrangements for their Mill Street house, or whether she should stay in Perth near her Philippine friends learning English and seeking work. That was the choice the Applicant and his wife had to make. These are the sort of difficult options that face many people in every day life. They decided to live separately for a period until it was possible to get a variation of the court order. It was a perfectly sensible decision that the Applicant and his wife made. But this is not a special reason within the meaning of section 24(1)." The Tribunal referred to its own earlier decision in a case, Sinanaj v Secretary, Department of Social Security (AAT 11/6/85, Deputy President T E Barnett, 10 March 1997 unreported). There the applicant and his wife were geographically separated because circumstances beyond their control prevented them being together. They had gone with their children to the former Yugoslavia to visit his wife's sick mother. The applicant in that case had later returned but his wife was trapped in Yugoslavia and prevented from returning to Australia. The Tribunal had considered the circumstances in that case to be special because the wife was captive in Yugoslavia, the government there refused to issue her and her children a passport and her husband had difficulty in raising the funds needed to pay for their passage back to Australia later. 15 The Tribunal held that the decision whether Rosalina should join Mr Boscolo in Sydney was taken at a time when both knew they were receiving their entitlements at the married rate. They were aware it would increase their expenses for Rosalina to stay in Perth and for Mr Boscolo to go to Sydney. They chose to live separately. The reasons for this were the need to look after the house, Rosalina's proximity to her friends, the impending arrival of Rosalina's son, Rosalina's English lessons and search for work. The Tribunal held these reasons were not special. The house could have been taken care of by friends and relatives or it could have been rented out. English could be learned in Sydney. The Tribunal concluded: "15. The Tribunal recognises that the Family Court said that Sylvia badly mistreated David and it congratulates the Applicant for fighting for David's welfare and for going to Sydney to protect him. Ultimately, however, the geographical separation and extra expenses involved in living separately were caused by their decision that Rosalina would remain in Perth. 16. The reasons for this decision were not so out of the ordinary, not so exceptional that they constitute a special reason under section 24(1) of the Act, and for that reason the Tribunal decides that the decision under review is affirmed."

The Contentions 16 Mr Boscolo suffered under the considerable disadvantage that he was not represented at the hearing. However the amended notice of appeal filed in this matter did seem to have been drawn with some legal assistance by reference to grounds for review in the following terms: "1. The Administrative Appeals Tribunal ("the AAT") wrongly applied the Law to the facts as found by it, in particular by characterising the relevant facts as not being so out of the ordinary and exceptional that they constitute a special reason under Section 24(1) of the Social Security Act 1991. 2. There was no evidence or other material to justify the AAT's decision to so characterise the relevant facts. 3. The decision by the AAT to so characterise the facts was so unreasonable that no reasonable thinking could have made it." (sic)

A Special Reason in a Particular Case 17 The first ground of appeal raises for consideration the question whether the Administrative Appeals Tribunal wrongly applied the law to the facts as found by it. The question is whether the Tribunal's characterisation of the facts as not disclosing a "special reason" under s 24 indicates some error in its application of the law. 18 The word "special" conditioning "reasons" or "circumstances" guards the entrance to the exercise of many different statutory discretions. It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened. A Full Court has spoken of it as having content which is "…sufficiently understood not to require judicial gloss" - Beadle v Director-General of Social Security (1985) 60 ALR 225 at 228. If helpful to speak in terms of its meaning almost all of it comes from context. Thus man may be "special" in relation to animals generally but "…when you are speaking of poets, he may need to be a Milton" - Holpitt v Varimu (1991) 103 ALR 684 at 686 per Burchett J. It is an elastic instruction suitable for application across a range of situations - Jess v Scott (1986) 70 ALR 185. This is just another way of pointing to its instrumental character. That application is not to be confined by precise limits or rules - Beadle (supra) at 228. Circumstances or reasons will not necessarily fall outside the designation of "special" because they fall within a class which is widely defined or because they are circumstances or reasons which can be foreseen before they arise - Re Hutchins; Jarlas Pty Ltd v Federal Commissioner of Taxation (1987) 74 ALR 455 at 473. The core of the requirement for "special circumstances" or "special reasons" is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course - Minister for Community Services and Health v Chee Keong Thoo (1988) 78 ALR 307 at 324 (Burchett J). But that does not require that the case be extremely unusual, uncommon or exceptional - Secretary, Department of Social Security v Hodgson (1992) 108 ALR 322. In Beadle (supra) the Full Court, having concluded that the term "special" was sufficiently well understood not to require a judicial gloss said the matter was one for the decision-maker, in that case the Director-General of Social Security. 19 The decision-making process under s 24 is notionally in two stages. First, is the assessment whether there is a special reason in the particular case for which the Secretary is satisfied that the person the subject of his discretion should not be treated as a member of a couple. There follows the determination that the person is not to be treated as a member of a couple. The latter determination involves the exercise of discretion although as a practical matter assessment and determination will tend to be rolled up as one decision. 20 It is of importance in the present case to note that s 24 requires the decision-maker to focus on the position of one person, not the couple, and to assess whether that person should for a special reason not be treated as a member of the couple. It is possible that in the case of two married persons in receipt of different benefits, each paid at a married rate, one person might not be treated as a member of the couple while the other might continue to be so treated. 21 The Tribunal approached its task in this case by considering the position of Mr Boscolo and his second wife Rosalina in their decision "… to live separately for a period until it was possible to get a variation of the court order". At one point in the reasons it was that decision which was treated as not being a special reason within the meaning of s 24. At another point the reasons for that decision were held not to constitute a special reason. 22 The Act requires that the decision-maker consider the circumstances of the person who is claiming to be paid the benefit at single rates. In this case the question for determination was whether Mr Boscolo was not to be treated as a member of the couple for the purposes of the Act and whether there was a special reason in the particular case for such a determination to be made. 23 Approached on that basis it was open to the Tribunal to conclude that Mr Boscolo had no real choice but to go to Sydney to resolve the issue about his son, David. That was the way he put it in his oral submission to the Court. Viewed in that way it might well be seen that circumstances which effectively compelled him to live apart from his new wife for a time constituted a special reason in the particular case why he should not be treated as a member of a couple. It is not apparent that Rosalina would have been willing to go to Sydney with Mr Boscolo for purposes related entirely to his previous family and involving considerable upheaval and inconvenience to her endeavours to build a new life in Australia. 24 Treating the relevant reasons as those applicable to Mr Boscolo and Rosalina as a couple, the Tribunal has not disclosed either expressly or by necessary implication that it has approached the test in this case as required by the statute, that is to consider whether Mr Boscolo should not be treated as a member of a couple. Its consideration of what amounts to a special reason seems to have been limited to what it has treated as the joint decision of Mr Boscolo and Rosalina to live separately for the period that he had to be in Sydney. 25 For that reason I think that the first ground of appeal is made out and that the Tribunal misapplied or failed to apply the relevant provision of the Act to the facts. To consider the position of Mr Boscolo and the circumstances affecting him might well have led to a different outcome from that which the Tribunal arrived at in this case. That does not of course prevent the Tribunal from considering all relevant circumstances including the position of Rosalina as it affected Mr Boscolo. The matter will be a matter for the Tribunal to reconsider in the light of these remarks. It is not for this Court to substitute its own view of the facts for that of the Tribunal.

Conclusion 26 For the above reasons this application will be allowed and the matter remitted to the Tribunal to determine according to law. There was no demonstrable basis for the two remaining grounds of appeal and this matter is remitted only in relation to the first ground. 27 Mr Boscolo represented himself and counsel representing the Secretary indicated at the hearing that the Secretary would not be seeking costs in the event the appeal were unsuccessful. In the circumstances, I consider no order as to costs ought to be made in any event.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Counsel for the Respondent: Mr P.R. Macliver

Solicitor for the Respondent: Australian Government Solicitor

Date of Judgment: 18 February 1999

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