Re Waterford and Director-General of Social Services (1980) 3 ALD 63

In the Marriage of Todd (No 2) (1976) 9 ALR 401

Lambe v Director-General of Social Services [1981] FCA 171; (1981) 4 ALD 362

Re Lambe and Director-General of Social Services [1981] FCA 171; (1981) 3 ALN N72

McDonald v Director-General of Social Security [1984] FCA 57; (1984) 6 ALD 6

Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 4 ALD 198

Collector of Customs v Perkins Shipping Pty Ltd [1989] FCA 27; (1989) 85 ALR 279

Federal Commissioner of Taxation v Carberry (1988) 88 ATC 5005

This is an application, lodged on 6 April 1989, for review of a decision of the Social Security Appeals Tribunal ("SSAT") made on 13 February 1989. The decision the subject of review by the SSAT was a decision of an officer of the Department of Social Security ("the Department") made under the Social Security Act 1947 ("the Act") on 17 November 1988, cancelling the respondent's widow's pension. On 2 December 1988 an officer of the Department calculated that Miss Villani had been overpaid pension in the sum of $6074.10 between 14 April 1988 and 10 November 1988. As the ground of that decision was a finding that the respondent had been "living in a de facto relationship" since 2 April 1988 it appears (although not from the terms of the actual decision to cancel the pension) that the cancellation was regarded as having effect from that date.

2. The majority of the SSAT decided "that the appeal is successful and the decision under review is set aside". One member decided that "the decision of the Department of Social Security should be affirmed". On 28 April 1989, on the application of the applicant, this Tribunal granted, pursuant to section 41 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), a stay of the operation of the SSAT decision insofar as it required the applicant to pay arrears of widow's pension to the respondent in respect of the period in respect of which pension payments were made on dates falling between 11 November 1988 and 26 April 1989.

3. At the hearing of the substantive matter, the Tribunal had before it the documents lodged by the applicant pursuant to section 37 of the AAT Act (as amended by section 212 of the Act) and numbered T1 to T40, together with other material lodged at the hearing. The applicant was represented by Miss Wiener of counsel and the respondent by Mr Rodan, solicitor. Evidence was given at the hearing by the respondent, by Mr Herbert Najkus, in whose house she lives, and by Mr Rankin and Ms Latham, field officers in the employ of the Department. The hearing began on 24 November 1989, and for reasons beyond anyone's control, was not completed until 6 March 1990.

4. Miss Villani was granted a Class A widow's pension on 17 July 1978 under the provisions of the Act as it then stood. From 2 April 1988 (that is, the commencement of the period with which I am here concerned) to 28 February 1989, the qualification prescribed by the Act for entitlement to Class A widow's pension included a requirement that the claimant be a "widow" as (very broadly) defined by sub-section 43(1) of the Act. It appears from the material before the Tribunal that Miss Villani initially fell within that definition by virtue of being "a deserted wife" as defined in sub-section 43(1), but that is not of significance in the present context. The definition of "widow" expressly excluded "a woman who is living with a man as his wife on a bona fide domestic basis although not legally married to him".

5. The provisions relating to widow's pension were replaced by provisions relating to sole parent's pension, which were introduced by the Social Security Legislation Amendment Act 1988 ("the 1988 Amendment Act") with effect from 1 March 1989. From that date, by virtue of the 1988 Amendment Act, the qualification prescribed by the Act for entitlement to sole parent's pension has included a requirement that the claimant be "a single person"; and the relevant portion of the definition of "single person" in sub-section 43(1) of the Act has read "a person who is not a married person". Sub-section 3(1) of the Act has at all relevant times provided that "'married person' includes a de facto spouse". As at 1 March 1989, and until 31 December 1989, the definition of "de facto spouse" in sub-section 3(1) read:

living with another person of the opposite

sex as the spouse of that other person on a

bona fide domestic basis although not legally

married to that other person;".

6. It does not appear to be in issue, and on the evidence I find, that, leaving on one side the circumstances out of which the present proceedings arise, Miss Villani has, since the grant of widow's pension to her on 17 July 1978, otherwise satisfied the qualifications for whichever of the pensions was relevant at the time.

7. The effect of both sets of provisions referred to above is, for present purposes, the same, namely, that if Miss Villani was living with Mr Najkus as his wife on a bona fide domestic basis although not legally married to him, she was not qualified to receive a widow's pension/sole parent's pension. It was agreed at the hearing that that was the question to which the parties would direct their argument. If I were to find that Miss Villani was not so qualified, the matter would be called on again to consider the question of the overpayment. The Legislation from 1 January 1990 ("the new legislation")

8. After the commencement, but before the conclusion, of the hearing in this matter, the Act was further amended, with effect from 1 January 1990, by the Social Security and Veterans' Affairs Legislation Amendment Act (No 3) 1989 ("the No 3 Amendment Act"). The definition of "de facto spouse" in sub-section 3(1) has, since that date, read:

"'de facto spouse' means a person who is

living with a person of the opposite sex, to

whom he or she is not legally married, in a

relationship that, in the opinion of the

Secretary formed as mentioned in section 3A,

is a marriage-like relationship;".

The expression "marriage-like relationship" is not defined. However, section 3A, which was introduced by section 25 of the No 3 Amendment Act, reads:

"3A. In forming an opinion about the

relationship between 2 people for the

purposes of the definition of 'de facto

spouse' or 'married person' in subsection

3(1), 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."

Section 43A, which was introduced by section 28 of the No 3 Amendment Act, reads, so far as relevant:

"43A.(1) This section applies where, for a

period of at least 8 weeks, 2 people of

opposite sexes who are not legally married to

each other have shared a residence (in this

section called the 'shared residence') with

each other and at least one of the following

circumstances applies in relation to the

people:

(a) a child of both the people also lives in

the shared residence;

(b) the people have joint ownership of the

shared residence;

(c) the people are joint lessees of the

shared residence, where the original

duration of the lease was at least 10

years;

(d) the people have:

(i) joint assets with a total value

of more than $4,000; or

(ii) joint liabilities totalling more

than $1,000;

(e) the people have at any time been married

to each other;

(f) the people have at any time shared

another residence with each other.

. . .

(3) Where this section applies in

relation to a person who is receiving a sole

parent's pension (in this section called the

'pensioner') because the person has shared a

residence with another person, the Secretary

may give the pensioner a notice:

(a) requiring the pensioner to give the

Secretary:

(i) such information about the

pensioner's relationship with the

other person as is specified in

the notice, being information:

(A) that is within the

pensioner's own knowledge;

or

(B) that the pensioner can

reasonably be expected to

obtain; and

(ii) any other information that might

be relevant to the question

whether the pensioner is the de

facto spouse of the other person

or is separated from the other

person; and

(b) specifying that, if the information is

not given to the Secretary within 14

days after the notice is given, the

pensioner's pension will be suspended.

. . .

(5) Where:

(a) a pensioner or claimant covered by

subsection (1) purports to give the

Secretary the information about his or

her relationship with another person

required by a notice under subsection

(3) or (4); and

(b) the Secretary is satisfied that the

pensioner or claimant has provided all

the relevant information;

the Secretary must form an opinion whether

the pensioner or claimant is living with the

other person in a marriage-like relationship.

(6) Where this section applies, the

Secretary must not form the opinion that the

pensioner or claimant is not living with the

other person in a marriage-like relationship

unless, having regard to all of the matters

specified in the paragraphs of section 3A,

the weight of evidence supports the formation

of an opinion that the pensioner or claimant

is not living in a marriage-like relationship

with the other person.

. . .

(17) For the purposes of this section, 2

people are to be taken to share a residence

if the residence is the principal home of

each of them.

(18) In this section:

'child', in relation to a person, means

another person of any age who is a natural or

adopted child of the person;".

9. In a number of decisions the Tribunal and the Federal Court have considered the expression "living with a man as his wife on a bona fide domestic basis although not legally married to him" in various sections of the Act. What is in issue is the nature of the relationship between a man and a woman who are living together. Assistance as to the considerations relevant to a determination of the nature of such a relationship may also be gained from the authorities on the question as to whether a married couple, while living under the same roof, are effectively separated.

10. In the context of an application for widow's pension, the Tribunal said in Re Waterford and Director-General of Social Services (1980) 3 ALD 63 at paragraph 15:

"In the first place, the words 'bona fide'

cannot literally mean what they mean in

translation, that is to say 'in good faith'.

They would be meaningless if they did. We

consider that they mean 'real' or 'real and

genuine' in the sense that the 'domestic

basis' referred to must be real and not

accidental or contrived: see A-G v Duke of

Richmond (1909) AC 466. But, the proper

approach, we consider is to regard the phrase

as a whole, and not to break it up into

individual words. So doing, it must be seen

as a legislative expression of a view that a

woman whose relationship with a man has all

the indicia of marriage save only that it

lacks a legal bond shall not obtain the

advantage of a widow's pension which she

would otherwise obtain by reason of her

having come to fall within the general

description of 'widow' or within the extended

descriptions provided for by one or other of

paras (a) to (e) of the definition."

11. In the leading case of In the Marriage of Pavey (1976) 10 ALR 259, which is concerned with the concept of married people living separately and apart, the Full Court of the Family Court adopted the words of Watson J in In the Marriage of Todd (No 2) (1976) 9 ALR 401, in which His Honour said:

"What comprises the marital relationship for

each couple will vary. Marriage involves

many elements some or all of which may be

present in a particular marriage - elements

such as dwelling under the same roof, sexual

intercourse, mutual society and protection,

recognition of the existence of the marriage

by both spouses in public and private

relationships."

The Full Court added to those elements "the nurture and support of the children of the marriage".

12. In Lambe v Director-General of Social Services [1981] FCA 171; (1981) 4 ALD 362, the Full Court of the Federal Court said, considering the eligibility of a woman for supporting parent's benefit (forerunner of sole parent's pension):

"True it is, as the Tribunal found, if a woman

lives with a man as his wife, the traditional

view is that he has an obligation to support

her, which support is very frequently an

incident of the state of 'living together on

a bona fide domestic basis'. However, it is

far from being the only incident, and it

would be impossible these days to see it as a

sine qua non of such a relationship or such a

domestic circumstance. We agree with the

Tribunal that in order to determine whether

the appellant was living with Foxwell as his

wife 'all facets of the inter-personal

relationship' of the two persons need to be

taken into account. We also agree that the

question of the financial support which

Foxwell provides is an important, although

not necessarily crucial, consideration, but

is only one of a number of relevant matters

which the Tribunal should take into account

in characterizing, as required by the

definition, the nature of the relationship

between the appellant and Foxwell.

. . .

In the result we see nothing in the purpose

of the scheme of the legislation, or in those

provisions of the Act, which provide benefits

for supporting parents to justify the

emphasis placed by the appellant on financial

support. There is no support to be found in

the legislation for the contention that it is

the only or the paramount or the crucial

consideration in determining whether a woman

is living with a man as his wife on a bona

fide domestic basis, although not legally

married to him. It is without doubt an

important factor, the significance and weight

of which will doubtless vary from case to

case."

The Tribunal in that case (Re Lambe and Director-General of Social Services [1981] FCA 171; (1981) 3 ALN N72) had said:

"We rather see the words 'domestic basis' and

the requirement which those words connote

that there must be a household in which the

relationship between the parties subsists as

the key to understanding this part of the

definition. We consider, therefore, that in

order to determine whether a woman comes

within the expression 'living with a man as

his wife on a bona fide domestic basis

although not legally married to him', all

facets of the interpersonal relationship of

the woman and the man with whom she is

allegedly living as his wife need to be taken

into account. This will involve

consideration of the inter-relationship of

the parties and any children in the

household; whether that relationship contains

any of the indicia of a family unit; and the

way in which the parties present their

relationship to the outside world. As was

indicated in Waterford's case, supra, the

question of financial support provided to a

woman will be an important consideration but

it is only one of a number of relevant

matters which need to be taken into account

if the question posed by Parliament is to be

answered.

Before a woman can be said to be living with

a man 'as his wife' there must, in our view,

be elements both of permanence and of

exclusiveness in the relationship, as these

elements are of the essence of a marriage

relationship (cf Nachimson v Nachimson (1930)

P 217 at 224 per Lord Hanworth MR). But

within those broad confines, it is surely a

notorious fact that marriage, in present day

society, allows considerable scope to the

parties to develop their relationship as they

see fit, without damaging the fundamental

integrity of that relationship as a marriage.

What might be called the traditional concept

of marriage - a marriage in which the husband

is the breadwinner and the wife the homemaker

caring for her husband and children - is far

from being a comprehensive description of

marriage as it is accepted in today's

society. It is unnecessary and it would be

unwise to attempt any description of the

range of relationships acceptable within and

recognisable as a marriage, but it seems

reasonably clear that those relationships

extend at one end of the spectrum to the more

traditional relationship of the husband as

breadwinner and the wife and children as his

dependants, through relationships in which a

high degree of financial independence is

enjoyed by both parties, to relationships in

which the wife is the breadwinner and the

husband and children her dependants."

13. At this stage, it is possible to list the principal matters which have been seen as appropriate for examination in order to determine whether a particular relationship is sufficiently similar to a marriage to bring the parties to that relationship within the definition of "de facto spouse", now in sub-section 3(1) of the Act, or similar expressions elsewhere or formerly to be found in the Act as it stood prior to 31 December 1989. Following the general statements made above as to the nature of the marriage relationship, the circumstances to be considered may be summarised as follows:

- dwelling under the same roof

- permanence

- exclusiveness

- sexual intercourse

- mutual society and protection

- the existence of a household

- relationships within that household

and whether those relationships show

the indicia of a family unit

- the way in which the relationship is

presented by the parties to the

outside world

- financial support

- the nurture and support of the

children of the relationship

14. The question then arises as to the relevance of the new legislation to this matter; and further, if it is relevant, whether, and if so to what extent, it has changed the law.

15. The operative provision (if any), in the present context, would be sub-section 43A(6). It is not in issue that since 2 April 1988 Miss Villani and Mr Najkus have shared a residence, in that the residence at 10 Hollyrood Avenue, Strathmore, has been the principal home of each of them, in terms of sub-section 43(17). Nor is it in issue that Emily Najkus, a child of both of them, also lives in the shared residence in terms of paragraph 43A(1)(a); or that in 1980-1981 Miss Villani and Mr Najkus shared a residence at 71 Melbourne Avenue, Glenroy in terms of paragraph 43A(1)(f). Thus (assuming that there has been no change in the situation since the conclusion of the hearing) section 43A applies to their situation.

16. No notice was, of course, served on Miss Villani under section 43A, which was not in operation when this matter commenced. But sub-section 43A(6) clearly does not depend for its operation on the service of a notice under the earlier sub-sections. Thus prima facie the Tribunal, standing as it does in the shoes of the Secretary to the Department of Social Security (see section 43 of the AAT Act)

"must not form the opinion that (Miss Villani)

is not living with (Mr Najkus) in a marriage-like relationship unless,

having regard to all of the matters specified in the pararaphs of section 3A, the weight of the evidence supports the formation of an opinion that(Miss Villani) is not living in a marriage-like relationship with (Mr Najkus)". (emphasis added)

17. However, the effect of the passage emphasised in that extract from sub-section 43A(6) is that that provision is relevant only when the relationship is being considered as it exists contemporaneously with the formation of the opinion. The decision under review in this matter relates to the relationship between Miss Villani and Mr Najkus as it existed in the period between 14 April 1988 and 10 November 1988. That being so, the matter falls to be decided in accordance with the relevant provisions of the Act as they stood in that period, briefly described in paragraphs 5 and 7 supra.

18. Nevertheless, given that I am satisfied on the evidence that the relevant circumstances have remained unchanged since 2 April 1988 and are continuing, it seems to me appropriate that, in case the issue should require further determination in the future, I should consider the evidence before me in the light of the new legislation as well as of the provisions as they stood in the specific period from 2 April 1988 to 10 November 1988 with which I am concerned.

19. Many decisions have been made in this Tribunal (and very many more by officers of the Department of Social Security and by the SSAT) on the basis of the authorities to which I have referred in paragraphs 10 to 12 above, and other similar decisions. An examination of the matters specified in section 3A shows that that provision sets out in detail a number of factual matters which it is necessary to examine in order to form a view as to the existence of the various circumstances, enumerated in paragraph 13 supra, which the authorities have prescribed as relevant to the issue to be determined. That being so, the requirements in section 3A, in the new definition of "de facto spouse", and in sub-section 43A(6), that the Secretary "have regard to" those matters, does no more than codify the law as it stood before the enactment of the new legislation.

The next question before me is the effect of the words

"the Secretary must not form the opinion that

the pensioner or claimant is not living with

the other person in a marriage-like

relationship unless . . . the weight of the

evidence supports the formation of (that

opinion)."

20. The leading authority on the applicability in this Tribunal of the concept of onus of proof is the decision of the Full Court of the Federal Court in McDonald v Director-General of Social Security [1984] FCA 57; (1984) 6 ALD 6. Woodward J said, at page 11:

"It is true that facts may be peculiarly

within the knowledge of a party to an issue,

and a failure by that party to produce

evidence as to those facts may lead to an

unfavourable inference being drawn - but it

is not helpful to categorize this common

sense approach to evidence as an example of

an evidential onus of proof. The same may

be said of a case where a good deal of

evidence pointing in one direction is before

the Tribunal, and any intelligent observer

could see that unless contrary material comes

to light that is the way the decision is

likely to go. Putting such cases to one

side there can be no evidential onus of proof

in proceedings before the AAT unless the

relevant legislation provides for it, and in

the present case the Social Security Act 1947

does not.

If the AAT finds itself in a state of

uncertainty after considering all the

available material, unable to decide a

question of fact either way on the balance of

probabilities, it will be necessary for it to

analyse carefully the decision it is

reviewing. If, for example, it is a

decision whether or not to cancel a pension

in the light of changed circumstances, then

it has failed to achieve the statutory

requirement of reaching a state of mind that

the pension should be cancelled. If, on the

other hand, it is a decision, to be made in

the light of fresh evidence, whether or not

the pension should ever have been granted in

the first place, then it has failed to be

satisfied that the person ever was

permanently incapacitated for work."

"When the party to litigation on whom the onus

of proof of an issue lies has concluded his

evidence, the court may be called upon by the

other party to determine the question of law

whether that evidence can support a verdict

or finding for him on whom the onus lies.

Except by special legislative direction no

administrative decision-maker could be so

constrained. In many cases subject to

administrative decision there is in any event

no other party in controversy with him on

whom the onus may be said to lie.

There is, however, in my opinion a dilemma in

which either a court or an administrative

authority determining rights or liabilities

may find itself, for the resolution of which

the same principles are applicable by each

tribunal. Either tribunal may find itself

unpersuaded either that a circumstance exists

or that it does not exist. (The same may be

said of a past or a future circumstance.)

The court or the administrative authority

will determine, by reference to the

substantive law, whether it is the existence

or the non-existence of the circumstance

which is determinative of the question for

decision. In this case the Administrative

Appeals Tribunal would determine whether the

Social Security Act 1947, upon its proper

construction, required that the applicant's

pension be cancelled if she were found not to

be permanently incapacitated for work, or

required that the pension be cancelled unless

she were found to be permanently

incapacitated for work. In the former case

the Tribunal's lack of persuasion that

permanent incapacity did not exist would

preclude cancellation. In the latter case,

the Tribunal's lack of persuasion that

permanent incapacity did exist would result

in cancellation. An application of the same

principles by a court in resolution of the

same dilemma is to be found in Maher-Smith v

Gaw [1969] VicRp 47; (1969) VR 371. In a court the

principles are expressed in terms of the onus

or burden of proof. When those principles

are applied in an administrative tribunal,

there may be risk of misconception if the

curial modes of expression are employed."

21. The enactment of sub-section 43A(6) has the effect that, in this context, the Act does in fact "by special legislative direction" (to adopt the usage of Jenkinson J) constrain the administrative decision-maker not to form a particular opinion unless that opinion is supported by the weight of the evidence. However, it does not appear to me that that enactment has changed the law by any significant extent.

22. To begin with, bearing in mind that the decision-maker must have regard to "all of the matters specified in the paragraphs of section 3A", it would appear that the decision-maker must take steps to obtain sufficient evidence to enable all of those matters to be taken into account. That being so, the opinion cannot be formed on the ground that necessary evidence has not been provided by the pensioner or claimant, so as to import the concept of an onus on the pensioner or claimant which has not been discharged.

23. Further, to say that a particular decision must not be made unless supported by "the weight of the evidence" is surely no more than a statement of the duty of any administrative decision-maker, whether a primary decision-maker or a tribunal on review.

24. It is true that in Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 4 ALD 198 the Full Court of the Federal Court constituted by Fox, Deane and Morling JJ said (at page 201):

"A number of authorities was cited by counsel

for the appellant in support of the

propositions that the making of a decision

against the evidence or the weight of the

evidence and the making of an unreasonable

decision are errors of law. We find it

unnecessary to examine these authorities for

the reason that, in our opinion, there is no

factual basis to found those propositions.

We would, however, comment that the concepts

of a decision being against the evidence and

of being against the weight of the evidence

belong to appeals from courts of law and have

particular application to jury verdicts.

Even in that context, they do not involve

questions of law. They certainly have no

place when the appeal, or review, is of

proceedings of an administrative tribunal

which is not bound by the rules of evidence

and which, subject to the obligation to

observe the requirements of natural justice,

can inform itself as it chooses. (See,

s 33(1)(c) of the Administrative Appeals

Tribunal Act 1975.) An appellant who

attacks a conclusion of the Tribunal because

of deficiency of proof said to amount to

error of law must show, if he is to succeed,

that there was no material before the

Tribunal upon which the conclusion could

properly be based."

Their Honours were there concerned with the grounds for an appeal from the Tribunal "on a question of law" pursuant to section 44 of the AAT Act. It cannot be imagined that they intended to state as a principle that the Tribunal, in reaching a decision, need not do so in accordance with the weight of the evidence.

25. As the Full Court, constituted by Morling, Olney and von Doussa JJ, said in Collector of Customs v Perkins Shipping Pty Ltd [1989] FCA 27; (1989) 85 ALR 279 at 282: "whether there was factual material before the Tribunal which could reasonably admit of the conclusion reached" is a question of law.

26. Similarly, in Federal Commissioner of Taxation v Carberry (1988) 88 ATC 5005 Davies J said at page 5007:

". . . it may be demonstrated that . . . (the

Tribunal's) decision was so unreasonable

having regard to the facts before it that no

reasonable tribunal could have come to such a

conclusion. See e.g. Edwards (Inspector of

Taxes) v Bairstow and Another [1955] UKHL 3; (1956) AC 14.

All those grounds, . . . provide, in my view,

grounds of law which may be encompassed in an

appeal under section 44 of the (AAT Act)."

27. But if the Tribunal, having been constituted by Parliament the final arbiter of fact within its jurisdiction, is satisfied that a finding of fact based on appropriate factual material before it (that is, "factual material . . . which could reasonably admit of the conclusion reached" (Collector of Customs v Perkins)) is the correct finding of fact, then that finding must be, in the judgment of that Tribunal, made in accordance with what the Tribunal considers to be "the weight of the evidence". The exercise of that judgment cannot be the subject of an appeal: but that is not to say that the finding of fact can or should properly be made otherwise than in the exercise of such a judgment.

28. However, in one respect, sub-section 43A(6) does clearly change the law, and that is in the situation described in the second paragraph of each of the extracts from the judgments in McDonald which are set out in paragraph 21 supra. If the Tribunal is "in a state of uncertainty after considering all the evidence, unable to decide a question of fact either way on the balance of probabilities" (Woodward J), then the sub-section requires a decision that the person is living in a marriage-like relationship. That decision must be reached regardless of whether the person is a pensioner (and thus the decision to be made is whether or not to cancel the pension) or a claimant (the decision being whether or not to grant a pension) which would, according to the principles set out in McDonald, normally determine the question.

29. Section 15AB of the Acts Interpretation Act 1901 provides that, in the interpretation of a provision of an Act, consideration may be given to material not forming part of the Act in order (inter alia) "to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act" (paragraph 15AB(1)(a)).

30. The relevant passage of the Second Reading Speech on the Bill for the No 3 Amendment Act (delivered in the Senate by Senator Button on 30 October 1989: Hansard page 2500) reads at page 2501, so far as it relates to the provision which became section 43A:

"This Bill . . . would enable the Department to

require sole parent pensioners and claimants

for pension who are living in a de facto or

marriage relationship to fully disclose their

domestic circumstances to the Department.

It would provide that, where this is done,

the Department must weigh the evidence with a

clear list of relevant indicia set out in the

legislation and make a decision whether the

person is, or is not, entitled to pension.

The legislation would provide that, in the

rare case when a decision maker is unable to

come to a clear conclusion one way or the

other, pension should cease - subject to

continuation of pension pending resolution of

any appeal to the Social Security Appeals

Tribunal.

The legislation would also provide that, when

a pensioner or claimant has fully and

honestly disclosed his or her domestic

circumstances to the Department and it has

been decided that he or she is entitled to

pension, there should be no further

investigation of the domestic circumstances

of that person for 12 weeks - unless there is

a significant change of circumstances. In

this way, the Bill would guarantee a decision

making process which recognises the

complexity of many cases in this area: and

protects clients and staff from the indignity

and arbitrariness of current arrangements."

(emphasis added)

31. The passage emphasised serves to confirm that the intention of Parliament was that the effect of sub-section 43A(6) should be what I have found, in paragraph 29 supra, to be the ordinary meaning conveyed by its text. It is only in the situation there specified that sub-section 43A(6) has changed the law. And, it should be noted, that provision only operates where section 43A applies, that is, in the situation described in sub-section 43A(1). The Evidence

32. All of the witnesses were extensively cross-examined, I am satisfied that each of the witnesses is, essentially, a witness of truth. There are certain inconsistencies in the evidence, which are discussed below.

33. On the basis of the oral and written evidence before me, I find the facts set out in this and the following three paragraphs. Miss Villani was born in Australia in 1954 of parents who came from Foggia in Italy. She has seven brothers and one sister. In 1971 she married one Giuseppe Esposito, and there is one child of the marriage, Paul Esposito, who was born in 1976. They separated early in 1978, and Miss Villani was granted widow's pension on 17 July 1978. They were divorced in April 1979. She received maintenance from mr Esposito for about six months in 1987, but not otherwise. She has ceased taking payment of maintenance because of the problems which it brought.

34. Miss Villani met Mr Najkus in 1978 as a friend of two of her brothers John and Luigi. She was living in the house of one of them in late 1980, but the house was small, and not big enough for her and Paul. Mr Najkus invited her to rent a room at his house in Melbourne Avenue, Glenroy, and she and Paul moved in there. At that time Mr Najkus's daughter, Anita, and, for six months a woman friend with whom Mr Najkus was living, also lived in that house. In 1982 Mr Najkus sold the house and bought another house in Hollyrood Avenue, Strathmore, and Miss Villani and Paul also moved there.

35. In mid 1985 Miss Villani and Mr Najkus had what was described as "an affair", and as a result a child, known as Emily Najkus, was born in March 1986. In May 1986 Miss Villani move out and went to live in the house of Mr Najkus's daughter, who had married, and was living with her husband in Macey Street, Avondale Heights.

36. In November 1987 Miss Villani left Macey Street and moved to her brother John's house in Hansen Street, Footscray. In April 1988 she returned to Mr Najkus's house at Hollyrood Avenue, where she still lives. As at the time of the hearing, the living arrangements in that house and the relationship between Miss Villani and Mr Najkus had not changed significantly since that date.

37. Given the view which I have expressed above as to the effect of the new legislation, it is both appropriate and convenient that I examine that relationship having regard to the several matters specified in section 3A of the Act.

38. Paragraph 3A(a) requires that the Secretary have regard to:

"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;".

I find there to be no joint ownership of assets, joint liabilities, or significant pooling of financial resources, and no legal obligations owed by either Miss Villani or Mr Najkus in respect of the other. Mr Najkus is the sole owner of the house. Paul's school fees are paid by Miss Villani. Miss Villani pays rent of $50 per week to Mr Najkus, and buys her own and the children's food. She does not buy food for Mr Najkus. On occasions she has contributed to the telephone or gas bill. Mr Najkus has four cars and Miss Villani drives one of them and sometimes puts petrol in it. During the period when Miss Villani's pension was stopped, she borrowed money from her father and her brother, and Mr Najkus allowed her to live in the house rent free. Mr Najkus does not give money to Miss Villani, and does not claim Miss Villani as a dependant for taxation purposes.

39. Paragraph 3A(6) requires that the Secretary have regard to:

"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;".

As to (i), I find that Mr Najkus takes no responsibility for Paul, save that the school has his work phone number as an emergency number if they are unable to contact Miss Villani, and he allows Paul to practise on his piano. Emily is Mr Najkus's daughter, and is clearly very important to him. He buys her clothes and toys, to the extent, at least, of the amount which he receives from Miss Villani as rent.

40. As to (ii), I find that Miss Villani and Mr Najkus occupy different rooms. Each has a TV set, Mr Najkus's in the living room and Miss Villani's in the sunroom. Miss Villani and the children normally watch hers. Paul has his own room and Emily sleeps with Miss Villani. Miss Villani does not pay for any of Mr Najkus's food. Mr Najkus does not eat breakfast. He normally eats his evening meal with an elderly Italian couple living nearby who regard him as a son. He often spends much of the weekend with them. He works long hours as a production engineer, leaving home at 6 a.m.

41. As to (iii), I find that Mr Najkus cleans his bedroom and lounge room and does his own washing and ironing, although the elderly Italian lady sometimes does that for him. Miss Villani cleans the rest of the house and looks after herself and the children. Mr Najkus cuts the grass and looks after the outside of the house.

42. Paragraph 3A(c) requires that the Secretary have regard to:

"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;".

There is no evidence on which I could find that Miss Villani or Mr Najkus have ever held themselves out as married to each other, and it was not suggested by the applicant that they had done so. Mr Najkus considers that Miss Villani's brothers would probably be happy if he and she were to marry, but that they understood why she had gone to live in his house. He commented that no normal person could live with her brother John. There was no evidence from any other person as to their assessment of the nature of the relationship. The only joint social activities in which Miss Villani and Mr Najkus engage are those involving Miss Villani's brothers, who were friends of Mr Najkus before he met Miss Villani. If they come to visit Miss Villani, Mr Najkus will join them. But he will go and visit them without Miss Villani. He had Christmas lunch with her and her brothers in 1989, but it was a sad occasion because of the death of her mother in that year. Mr Najkus takes Emily to the park, and to see the elderly Italian couple, in the weekend, without Miss Villani. I find the facts set out in this paragraph.

43. Paragraph 3A(d) requires the Secretary to have regard to "any sexual relationship between the people". I find that, as stated above, Miss Villani and Mr Najkus "had an affair" in mid 1985 and that sexual intercourse has taken place occasionally since. The following is an extract from page 100 of the transcript of cross-examination:

"MISS WIENER: You have said that there has

been some three or four instances of sexual

contact between you and Mr Najkus since, I

think you said, April of 88? --- Yes.

Would you describe that as still

ongoing? --- Well, it has not been for a while, no.

It could resume again, could it not? --- I do not know.

Well, let me put this to you: it is not

something that is completely out of the

question, is it? --- Well, I mean I do not

think there is anything wrong if someone does anyway.

Yes. I am not suggesting there? --- I mean it

is probably safer than going out and having

sex with someone else that has got AIDS or something.

It probably is. And it is someone you know,

and you are good friends and so forth. So

- - -? --- I would not make a commitment to

that, no.

All right. But it is something that, if you

both felt like it, could resume, could it

not? --- Well, as I said I would not make a

commitment to it. I mean it could happen,

you know, on an occasion, yes."

44. Paragraph 3A(e) requires the Secretary to have regard to:

"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."

As to (i), the length of the relationship appears from paragraphs 35-37 supra. As to (ii), both Miss Villani and Mr Najkus were extensively cross-examined on these matters. Having heard the evidence and observed each of them in the witness box for an extended period, I am satisfied, and I find, that they are not emotionally dependent on each other, and do not provide emotional support for each other. Miss Villani's commitment to her family and to her children was apparent to me, as was Mr Najkus's deep commitment to Emily. Each of those commitments was stronger, in my perception, than the relationship between Miss Villani and Mr Najkus, and I so find. Given the life style described above, I find that they do not provide significant companionship for each other.

45. Miss Villani explained, in the following terms, first, her reason for moving to Anita's house in May 1986:

"Well, I had just had Emily and I suppose, you

know, it was 10 years after I had another

child, I was not sort of coping that well,

and I suppose Mr Najkus was not much of a

help, because he is sort of, well, he was

being a bit bossy about Emily and sort of

trying to tell me what to do, and he - then

he started saying that because of Emily he

proposed marriage, and I said that I would

not accept, I did not want to be committed to

anyone, and I just could not live in that

situation any longer, so I moved."

and then, her reason for returning to Hollyrood Avenue, in April 1988:

"Well, my brother is renovating his house and

everything just seems to be a shambles there

and it was not very comfortable, and he had a

big German Shepherd in the back yard, so I

did not really feel very comfortable there,

and Mr Najkus knew that, and he asked me if I

would like to go and live in his house again,

and I - at first I said I was not sure

because of the problems I had previously had

with him when I moved out to Anita's, and

then I decided, well I thought I was not

comfortable where I was staying, and then I

thought, well, I said to him, I will come and

live there only under the condition that I am

my own person. I want to be independent in

myself. I do not want to have any

commitment to you or anything else to do with

the house. I just want to be independent in

myself. And he agreed to that, and so I

went there only on the agreement that we were

just going to see how the situation went, and

it seemed like it was working out all right.

He was not sort of nagging or anything.

. . .

Well, he was not - I thought he may have

nagged me, you know, with Emily, or tried to

- because he had his own thoughts probably of

bringing up children, and I did not want him

to have anything to do with that because I

did not want to be committed to him."

Mr Najkus, in effect, confirmed that his reasons for asking Miss Villani to marry him were to do with his relationship with Emily rather than his relationship with Miss Villani.

46. In the context of emotional support, much was made by the respondent of a journey to Italy and Yugoslavia in April and May 1989, undertaken by Miss Villani's father, her brother Luigi, Mr Najkus, Miss Villani, and Emily. The Villani family took the body of Mrs Villani's mother to Foggia, and Mr Najkus travelled with them to take Emily to see his mother in Slovenia. The money for Miss Villani's fare been provided by her mother, before she became ill and died, with a view to Miss Villani's taking Emily to Slovenia. Miss Villani spent two weeks in Slovenia, staying with Mr Najkus's sister while Mr Najkus stayed with his mother. She then spent two weeks, with her father and brother, staying with relatives in Foggia. Her father and brother spent some five weeks in Foggia. Miss Villani and Mr Najkus returned a little earlier than had been planned. I find the facts to be as I have set them out. The details of the journey were heavily canvassed in evidence, and I do not find them to imply any significant emotional dependence. I accept the explanations given by Miss Villani and Mr Najkus as to how and why things happened during the journey.

47. As to (iii), I find that, for reasons which he explained, and which it is not necessary to set out here, Mr Najkus intends to return to his family in Slovenia within the next year. Miss Villani accepts that if he does, she will have to find somewhere else to live. Both of them are accordingly aware that the relationship will not continue indefinitely, and neither of them showed any concern about that.

48. As to (iv), both Miss Villani and Mr Najkus agreed in cross-examination that they were friends, but not close friends. On 9 November 1988, during a visit by the two field officers who gave evidence, Miss Villani signed a statement, prepared by one of the field officers, which included the words:

"I moved back to the above address and started

living with Herbert Najkus in a situation

similar to that of a married couple. I

moved back on the 2nd of April 1988."

The circumstances in which that statement was obtained were extensively canvassed at the hearing. There were, inevitably, inconsistencies in the account of what occurred. In that context, I would observe that the interview was a routine matter for the field officers, but a highly significant experience for Miss Villani, and for that reason her recollection as to what took place may be more reliable than theirs.

49. It is not necessary for me to make any finding as to whether or not the field officers acted in accordance with their instructions, or whether those instructions were appropriate, and I do not do so. Miss Villani said it was put to her that she was living in "a situation similar to that of a married couple" because she was living in the same house as the father of one of her children, and it seemed to her probable that that was the view which the Department took. She said, and I accept, that this was the reason why she signed the statement. The extracts from Todd's case and Lambe's case, cited in paragraphs 11 and 12 supra, are sufficient to indicate the complexity of the concept involved. It cannot be assumed that Miss Villani was aware of the factors required to be taken into account in the assessment of the nature of the relationship in question. A situation may be in some respects "similar to that of a married couple" and in other respects not so. It is the totality of the situation which must be considered.

50. There are, as Miss Wiener pointed out, inconsistencies between the evidence of Miss Villani and Mr Najkus. However, in the context of the evidence viewed as a whole, I do not regard them as significant. A slavish consistency might have been more suspicious. I note that, as the dissenting member of the SSAT pointed out, in a pension entitlement review in August 1988 Miss Villani falsely stated that she was living with her brother in Hansen Street. However, again, in the context of the evidence viewed as a whole, I do not find that a reason to disbelieve her evidence generally.

51. No useful purpose would be served by listing the factors which I have considered, as falling on one side or the other of an imaginary line. As the authorities indicate, the relationship must be viewed in its entirety. On that basis, having considered the evidence in the light of the authorities to which I have referred, and having regard to all of the matters specified in section 3A of the Act, I find that, between 2 April and 10 November 1988, the respondent was not "living with a man as his wife on a bona fide domestic basis although not legally married to him". Accordingly, the decision under review will be affirmed.

52. I should make clear that I am satisfied, on the evidence, that that situation had not altered between 10 November 1988 and the conclusion of the evidence in this matter on 15 February 1990. That period, however, as I have said, is not before me.