Editors --- "Federal Court decisions Member of a couple: error of law; whether error of no practical consequence to finding of fact" [2008] SocSecRpr 31; (2008) 10(2) Social Security Reporter, Article 13

• SECRETARY TO THE DEEWR v HOLMES
• Background
• The issues
• Discussion
• Did consideration of the wrong question mean that irrelevant considerations were taken into account?
• Was there an error of law?
• Formal decision

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Federal Court decisions Member of a couple: error of law; whether error of no practical consequence to finding of fact

SECRETARY TO THE DEEWR v HOLMES

(Federal Court of Australia)

Decided: 20th February 2008 by Logan J.

Background

Holmes was paid parenting payment (‘PP’) at the single rate from January 2001 to May 2005. On13 July 2005Centrelinkdetermined that Holmes had in fact been a member of a couple during this period, and so had been overpaid $50,292, and sought to recover this amount. This decision was affirmed by the ARO and SSAT, but overturned on further appeal to the AAT, which found that Holmes had not been a member of couple during the period in question as she had been living separately and apart from her husband.

The issues

In its appeal to the Federal Court, the Department questioned whether the AAT in reviewing the SSAT decision had posed for itself an incorrect question (namely, by considering whether Holmes was living in a in a marriage-like relationship),whether the reasons for its decision were adequately set out, and whether there was evidence to justify the decision reached by the AAT.

The appeal principally focussed on the questions required to be considered in determining whether Holmes was, during the period in question, a ‘member of a couple’. That term is defined in s.4 of the Social Security Act 1991 (‘the Act’) which provides:

4 (2) Subject to subsection(3), a person is a member of a couple for the purposes of this Act if:

(a) the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; .....

Where the two people are not legally married s.4(2)(b) provides that the two persons may be considered to be in a ‘marriage–like relationship’ if the various circumstances of their relationship, as set out in s.4(3) of the Act, lead to that conclusion.

Discussion

The Court noted that there was no dispute that Holmes was legally married throughout the period in question. It noted that s.4(2) of the Act was directed toward two different situations –first, those in which the person was legally married – to which s.4(2)(a) is directed ; and secondly, those where the person is not legally married but may nonetheless be in a ‘marriage-like’ relationship – to which s.4(2)(b) is directed.

Given this, the Court determined that the correct question to be considered was not whether or not Holmes was living in a ‘marriage-like relationship’, as she was in fact married, but rather whether or not she was living separately and apart from her husband on a permanent or indefinite basis. However, the court concluded that, in determining whether or not person was living separately and apart from their spouse, the considerations listed in s.4(3) of the Act were appropriate to the analysis of the circumstances of the marriage relationship between two persons.

Having regard to the whole of the AAT reasons, the Court concluded that the AAT had not addressed the correct question, as it had considered essentially whether or not Holmes was living in a marriage-like relationship, which would have been the correct question only had Holmes been unmarried. Nevertheless, the Court concluded that, notwithstanding posing the wrong question, the AAT had in its reasoning demonstrated that it had in fact considered whether Holmes was living separately and apart from her husband (the correct question for consideration). The Court commented that ‘the approach[the AAT took] necessarily led to his traversing the true issue and to his forming the requisite opinion by reference to the requisite statutory criteria’(Reasons, para. 14).

Did consideration of the wrong question mean that irrelevant considerations were taken into account?

The Court concluded that even where the person was legally married, the determination of whether he or she was living ‘separately and apart from the other person on a permanent or indefinite basis’ required consideration of and should be informed by the various factors noted under s.4(3) of the Act. Although the AAT had posed the wrong question (viz, was Holmes living in a marriage-like relationship?) in lieu of the correct question (viz. was she living separately and apart from her husband?), a consideration of the AAT reasoning as a whole indicated that it had considered the s.4(3) factors. These factors were not an exhaustive list, but were relevant considerations in determining the nature of a relationship. The Court noted that ‘a consideration is ‘irrelevant’ in an administrative law error sense only if it is a consideration the taking into account of which is forbidden by the legislation concerned, either expressly or by implication having regard to its subject matter, scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1985-1986) 162 CLR 24 at39-40" (Reasons, para. 31). The Court concluded that, having regard to the AAT decision as a whole, the submission that it had taken irrelevant considerations into account was rejected.

Was there an error of law?

It was submitted that the AAT had made an error of law in reaching its findings of fact in relation to the various considerations listed in s4.(3) of the Act. The Court noted the decision in Australian Broadcasting Tribunal v Bond (1990) HCA 33; (1990) 170 CLR 321that:

...at common law, according to Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

In this situation there was, in the Court’s view, evidence before the AAT which would justify its findings by a reasonable person. The Court noted the comments of Brennan J in Waterford v The Commonwealth ( 1987) HCA 25; (1986-1987)163 CLR 54 that:

the error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact.

(reasons Para 54 – emphasis added)

Taking into account the decision as a whole, as written, and the oral transcripts of evidence, the Court concluded that the AAT had given adequate reasons for its decision, and that its finding that Holmes was living separately and apart from her husband on an indefinite basis ‘... was not tainted by the taking into account of irrelevant considerations or a failure to take into account the considerations that s.4(3)of the Act made relevant’. The Court concluded that ‘[the] only error of law made by the Tribunal was to fail correctly to state how those s.4(3) considerations were made relevant’ (Reasons, para. 63), but that this error did not warrant the setting aside of the decision as it was ‘harmless’.

Formal decision

The Federal Court dismissed the appeal.

[P.A.S.]