bal ' LY 2, [SAS {% 3 CATCHWORDS Appeal from Administrative Appeals Tribunal ~ Widows' pensiors - meaning of "widow" within meaning of s.59 of the Social Security Act 1947 - extended meaning of widow to include "a woman whose marriage has been dissolved" - whether such expression includes a woman whose bigamous marriage has been annulled. Administrative Appeals Tribunal Act 1975, s.44 Social Security Act 1947, s.59 Matrimonial Causes Act 1959, Division II Acts Interpretation Act 1901, s.15AA(1) Patricia Baron -v- Director-General of Social Security No.G247 of 1982 Coram: Evatt, Fisher and Morling JJ. 5 July 1983 Sydney IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY )} No. G247 of 1982 ) ) GENERAL DIVISION ON APPEAL from the Administrative Appeals Tribunal BETWEEN: PATRICIA BARON Appellant AND: DIRECTOR-GENERAL OF SOCIAL SECURITY Respondent ORDER JUDGES MAKING ORDER: Evatt, Fisher and Morling JJ. DATE OF ORDER: 5 July-1983 WHERE MADE: Sydney THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. DISTRICT REGISTRAR Date Entered: IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G247 of 1982 mw ww GENERAL DIVISION BETWEEN: PATRICIA BARON Appellant AND: DIRECTOR-GENERAL OF SOCIAL SECURITY Respondent CORAM: Evatt, Fisher and Morling JJ. 5 July 1983 REASONS FOR JUDGMENT This is an appeal pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 from a decision of the Administrative Appeals Tribunal (McGregor J.). The proceedings before the Tribunal were an application by the applicant for a review of a decision of a Delegate of the Director-General of Social Security refusing to grant the applicant a widow's pension to which she claimed to be entitled under the provisions of the Social Security Act 1947 ("the Act"). The only question which arises on the appeal is whether McGregor J. was correct in finding that the applicant was not a "widow" within the meaning of s.59 of the Act and 2. therefore was not entitled to a widow's pension. The facts upon which the applicant relies as entitling her to a pension are not in dispute. They are as follows: - On 10 May 1941 Walter Baron ("Baron") married a lady known as Mariann Franke ("Franke") at Berlin-Steglitz in Germany. In January 1942 Baron and Franke permanently separated. In May 1948 the applicant, then Miss Petch, arrived in Australia. On 8 January 1949 she went through a form of marriage with Baron at Ashfield in New South Wales. Two children were later born to Baron and the applicant. On 5 October 1951 Baron's maxriage to Franke was dissolved by the District Court Berlin. In November 1974 Baron and the applicant permanently separated. On 14 April 1975 the Supreme Court of New South Wales decreed the marriage solemnised on 8 January 1949 between Baron and the applicant to have been absolutely null and void. The decree was made because it was satisfied that prior to 8 January 1949 Baron was married to Franke and that on 8 January 1949 Franke was alive and was the lawful wife of Baron. So far as is known, Baron is still alive. On 15 July 1980 the applicant applied for a widow's pension. This application was rejected upon the ground that the applicant was not a widow within the meaning of the Act. The applicant lodged an appeal to the Social Security Appeals Tribunal which recommended that her appeal be allowed. Notwithstanding this recommendation the respondent dismissed the applicant's appeal and rejected her application for a pension. The applicant thereupon sought a review of the 3. respondent's decision pursuant to s.29 of the Administrative Appeals Tribunal Act 1975. Upon the hearing of the application for review, McGregor J. affirmed the Di1rector-General's decision. The short point for decision 1s whether, on the facts as we have stated them, the applicant can bring herself within the extended definition of "widow" in s.59 of the Act. That section is found in Part IV which makes provision for widows' pensions. The section provides, 1n part, as follows: "59. (1) In this Part, unless the contrary intention appears — 'dependent female' means a woman who, for not less than three years immediately prior to the death of a man (in this Paxt referred to as the man in respect of whom she was a dependent female), was wholly or mainly maintained by him, and although not legally married to him, lived with him as his wife on a permanent and bona fide domestic basis; 'deserted wife' means a wife who has been deserted by her husband without just cause for a period of not less than six months; eee 'widow' includes - ' (a) a dependent female; : (b) a deserted wife; (c) a woman whose marriage has been dissolved and who has not re-married; and * * * * * * * 4. (d) a woman whose husband has been convicted of an offence and is imprisoned and has been imprisoned for a period of not less than six months, including any period of imprisonment prior to and continuous with a period of imprisonment following upon the conviction, but does not include a woman who is living with a man as his wife on a bona fide domestic basis although not legally married to him." We should say at once that we have profound sympathy for the applicant in the unfortunate circumstances in which she finds herself. For her to find that she was not legally maxxried to the man she believed to have been her husband for 25 years and whose children she had borne must have been a personal calamity. Further, evexy consideration of justice compels the conclusion that she ought to be treated no differently from a woman whose legal maxriage has been dissolved when her qualification for a widow's pension is considered. These circumstances have led us to give the most anxious consideration to the facts of her case to see whether they do not bring her within one or other of the categories of persons falling within the definition of "widow" in s.59(1). But we have come to the conclusion that the language of the setion 1s so intractable that it does not permit us to hold that she qualifies for the pension which she seeks. It is clear that the word "includes" in the opening phrase of the definition of "widow" in s.59(1) 1s used in order to enlarge the ordinary meaning of the word "widow". It 5. does not mean "means and includes". Cf. Dilworth v Commissioner of Stamps [1899] A.C. 99 at p.105 and ¥.2@. Finance Company Pty.' Limited v. Cummings (1964) 109 C.L.R. 395 at p.398. But the applicant is not a widow within the ordinary meaning of the word at least, because Baron is not shown to be deceased. Hence, if she is to succeed, she must bring herself within one ox other of the classes of females referred to in the expanded definition. Mx Littlemore, who appeared for the applicant and advanced every possible argument in support of the appeal, conceded that the only category into which the applicant might fall is - "(c) a woman whose marriage has been dissolved and who has not remarried;". He argued that even though the ceremony of marriage in 1949 was not a legal marriage, it was nevertheless a marriage for the purposes of paragraph (c). He contended that the words "a woman whose marriage has been dissolved" were apt to refer to a woman in the position of the applicant whose void marriage has been annulled by a court. It was urged that the context in which the definition appeared was not that of matrimonial law, but of a scheme for assisting women whose reliance upon men _ for domestic support has been terminated. He relied upon a well known line of authority for the proposition that where two meanings are open it is proper to adopt that meaning which will avo1d consequences that appear irrational and unjust. See Ingham v Hie Lee (1912) 15 C.L.R. 267 at p.270 per 6. Griffith C.J.; Public Transport Commission of New South Wales v dg. Murray-More (N.S.W.) Pty. Limited (1975) 6 A.L.R. 271 at p.282 per Gibbs J. and Federal Commissioner of Taxation v Smorgon (1977) 16 A.L.R. 721 at 729 per Stephen J. However it was conceded by Mr Littlemore that it must fixst be established that both meanings are open. He also relied upon the definition of "dissolved" in the Oxfoxd English Dictionary where that word is given the following meaning: - "Reduced to its elements, broken up, disintegrated, destroyed, annulled, dispersed, put an end to," When construing the definitions which appear in s.59(1) of the Act it is fiecessary to bear in mind, as was pointed out in Lambe v Director-General of Social Services (1981) 38 A.L.R. 405, that although the Act is obviously designed to alleviate need, the legislature has not chosen to achieve this objective by making pensions or benefits generally available to any person who can demonstrate that for any reason he ox she is in need. As was pointed out in Lambe's Case p.4ll, the Act contemplates that pensions or benefits will be made available only to persons in particular categories. In each case it 1s necessary for the applicant to bring the claim within one of the designated categories. Turning now to the critical words in the definition 1t ius immediately apparent that the draftsman has generally 7. used technical words that have acquired well known legal meanings. The legislature must be taken to have intended to use those words with such meanings unless a contrary intention clearly appears in the context. See Attorney-General for New South Wales v Brewery Employees Union of New South Wales (1908) 6 C.L.R. 469 at p.531 per O'Connor J. The expression "marriage" refers in law to a marriage valid at the time it is contracted. The expression "dissolved" when used with reference to marriage refers to the termination of a validly contracted marriage. "Remarriage" refers to a valid marriage subsequent to the termination of an earlier marriage. The decree of annulment pronounced by the Supreme Court of New South Wales on 14 April 1975 was made pursuant to the provisions of the Matrimonial Causes Act 1959. Division I of Part 6 of that Act makes provision for decrees of dissolution of marriage. Division II makes provision for decrees of nullity of marriage on the ground that the marriage is void, or voidable at the suit of the petitioner. A decree of nullity does not dissolve a marriage, but proclaims and declares a nullity which already exists. See Napier v Napier [1915] P. 184 at 189 and Sheppard v Sheppard [1905] P. 185 at 191. The difference between dissolution and annulment of marriage is thus plain both at common law and under the Matrimonial Causes Act. If, therefore, the expression "a woman whose marriage has been dissolved" 1s to be construed as comprehending a woman whose invalid marriage has been annulled, 1t must be 8. because the context requires such a conclusion. But we can find nothing in s.59 or elsewhere in the Act to that effect. The definition of a "dependent female" points vp the distinction made in the definitions in s.59(1) between wamen who are legally married and those who are not. This only serves to confirm that the women referred to in sub-paragraph (c) of the definition of "widow" are women who have been legally married. It is likewise when in other parts of the Act reference 1s made to persons who axe married. It is true that the expression "legally married" is twice used in s.59(1) and that the reference to "marriage" in sub-paragraph (c) is to "marriage" simplicitexr and not "legal marriage". But we do not think anything turns upon this. Where the expression "legally married" appears, it is used in conjunction with a reference to a woman who is living with a man "as his wife". It 1s clear enough that the reason why the draftsman has used the expression "legally married" in those cases is that, having used the word "wife" in repect of an unmarried woman it was necessary for him to make plain that the woman was not legally married to the man with whom she was living as his wife. No similar necessity faced the draftsman in sub-paragraph (c), and hence there was no need to refer to a "legal marriage". Mr Littlemore relied upon s.15AA(1) of the Acts Interpretation Act 1901, as amended, which provides that in the interpretation of a provision of an Act, a construction that would promote the purpose or cbject underlying the Act 9. (whether that purpose or object is expressly stated in the Act ox not) shall be preferred to a construction that would not promote that purpose or object. But we do not think s.15AA(1) assists the applicant. There is nothing in the language of the Act indicating expressly or by implication that it is part of its purpose or object to make provision for the payment of widows' pensions to women in the position of the applicant. The words used in s.59(1) point in the contrary direction namely, that pensions are only available to persons who qualify within the specified categories. We think that the applicant's circwmstances were not foreseen by the draftsman and that, accordingly, no provision was made in the Act for women in her position. In the result we-can find nothing in the context which would justify a construction of the definition which would include a woman whose marriage has been annulled. We would only add that the facts of this case seem to require action by the legislature to xemove the unfortunate discrimination against a woman such as the applicant who, in all good faith, enters into a formal and apparently legal marriage with a man whose children she subsequently bears but who is treated by the Act less favourably than other women whose marriages are not defective in law. We note from the material in the appeal book that when the decision was taken by the Delegate of the Director-General of Social Security to refuse Mrs Earon's application for a widow's pension consideration was given to o 10. making an ex gratia payment equivalent to such a pension. The making of an ex gratia payment received some support from within the Department but a decision was taken that it should not be made. It is no part of the function of this court to xyecommend whether such a payment should be made to the applicant. But we cannot part with the appeal without observing that, on the material in the appeal book, there appears to be an overwhelming case for considering some form of ex gratia payment in this case, particularly as the applicant may have been encouraged to leave her employment in the expectation that she would receive a widow's pension. For the above reasons we are of the opinion that no error of law was made by the Tribunal in its decision. The appeal is therefore dismissed with costs. I certify that thistndthe nang CA) preceding pases ara a truec <P he Reasons Fi20 Ja.ime + . Mr, Justice Palle watt, ics owen Mr, Juskiee Fishor amd is Hoasae Me. Apaicess Morluam ; Dated: 5.7.¢3 A Sak