Lynam, James Leslie v Director-General of Social Security [1983] FCA 274

JAMES LESLIE LYNAM v. DIRECTOR-GENERAL OF SOCIAL SECURITY

QUEENSLAND DISTRICT REGISTRY ) QLD G50 of 1983 GENERAL DIVISION )

DATE OF ORDER: 10 OCTOBER 1983 WHERE MADE: BRISBANE THE COURT ORDERS THAT:

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.

IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G50 of 1983 GENERAL DIVISION )

Applicant AND: DIRECTOR-GENERAL OF SOCIAL SECURITY Respondent FITZGERALD J. 10 OCTOBER 1983

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 remale", 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 ona

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

After the applicant and Mrs C. first became acquainted,

there was only intermittent contact hetween them until]. in 1974,

the applicant returned to Brisbane from Melbourne and boarded at

a guest house where Mrs C. was working as a wWerestin. "ha applicant stayal at the quest house on three ocra.wn. | and 1975S. 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

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 appiicant andl Mra

C. were employed but Mr McN. was not, and For a tine Mr MeN. cla not meet bis commitments, although he lati tel oro 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

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

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 sociallv only on one occasion, to a race meeting. They have vecy littie contact with neighbours. They a: 5 are cut the relationsntp 1g strained. The applicant ara Mr | cebop sot to accept that there 1s no alternative to -Eheir current position; that he cannot afford to leave, that Mrs C. cannot afford tye buy his interest 1m the house, and that Mrs C. has no option but to support him while he is there and is unable to support himself,

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 wv. The Director-General of Social Security (1981)

38 A.L.R. 405, which he discussed at some lenath. 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, 1f any, which 1s payable to -he 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 manas his wife ona bona fide domestic basis

although not legally married to him' the needs of the applicant

are ot crucial siqnificance". 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 veference to their financial arrangements including the joint ownership of the property, that there was a "bond between them of a kind usually found ina marriage relationship". Accordinaly, the Tribunal considered that, in all the circumstances, Mrs C. should be considered as

Reqrettably, I have the misfortune to disagree with the

Tribunal. IT am convinced that the Tribunal's decision involved

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 15s "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 orf the Ack is warranted either by material chanae of cantext, 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

The question here as it was 1n Lambe's Case is whether the relationship between aman 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 i1t arises in this case. I decline the request for the applicant that IT 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

It 1s 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 arrangerents 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 he 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, 1f will be a question of fact and dearee, a jury question, whether a relationship between cvo unrelated

persons of the cpposite sex meets the statutory tect.

It seems futile to deny that subjective views as to what are aunvolved 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

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 2 special relationship akin to marriage. Altuwan 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

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 ag 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

oe 9. applicant and Mrs C. that they enjoy or have evel eniaved a sexual relation hip and the disbelief of thal #vivene? might. in the circumstancs, 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.

I certify that this andthe preceding pages are a tiue copy of the recsons for jud=ment herein of His Horour Mt Justice Fiizgereld MLL -Reveer 'Associate a Dated so @ctate, 1773