FEDERAL COURT OF AUSTRALIA Kajzer v Secretary, Department of Family & Community Services [2000] FCA 259 BOZENA KAJZER v SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES Q 187 OF 1999 DRUMMOND J 8 MARCH 2000 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 187 OF 1999 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: BOZENA KAJZER APPELLANT AND: SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES RESPONDENT JUDGE: DRUMMOND J DATE OF ORDER: 8 MARCH 2000 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of and incidental to the appeal to be taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 187 OF 1999 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: BOZENA KAJZER APPELLANT AND: SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES RESPONDENT JUDGE: DRUMMOND J DATE: 8 MARCH 2000 PLACE: BRISBANE REASONS FOR JUDGMENT 1 This is an appeal by Mrs Kajzer against a decision of the Administrative Appeals Tribunal (AAT) given on 27 May 1999. That was the fourth determination made adverse to Mrs Kajzer in respect of her claim for newstart allowance. Two internal departmental decisions and a decision by the Social Security Appeals Tribunal (SSAT) preceded the AAT determination. Mrs Kajzer now appeals to this Court in respect of the AAT decision. Under s 44 the Administrative Appeals Tribunal Act 1975 (Cth) it is only if there is error of law demonstrated in the decision of the AAT that this Court has any power to intervene. 2 The question of the core of Mrs Kajzer's concerns is the quantification of her entitlement to newstart allowance. As the AAT observed in its reasons, there is no question that she is qualified to receive the newstart allowance. But the Social Security Act 1991 (Cth) provides a formula for calculating the quantum of her entitlement to that allowance and it is at that point that Mrs Kajzer has encountered difficulties. As the AAT observed, module G of the rate calculator applicable to her claim to newstart allowance, and contained in the Social Security Act, sets out the manner in which the ordinary income of a person and her partner affects the maximum rate of payment of newstart allowance to that person. 3 A person is partnered if the person is a member of a couple within the meaning of that expression in s 4 the Social Security Act, where the expression is defined in this way: "4(2) …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 …, living separately and apart from the other person on a permanent or indefinite basis; or (b) …" 4 The Social Security Act contains, in s 4(3), guidelines to which the Secretary or his delegate decision-maker must have regard in making a determination on whether a person is a member of a couple so that the partner's income needs to be reviewed in determining the person's entitlement to newstart allowance. 5 The AAT reviewed the factual material put before it and concluded with these comments: "33. Taking into account all of those circumstances, we have concluded that Mrs Kajzer is a member of a couple. She is legally married to Mr Kajzer and is not living separately and apart from him at the relevant time. There is no one formula that determines whether or not people are living in a marriage and when they are living separately and apart. The types of marriages that exist are as multitudinous as the couples who enter them. In this case, Mr and Mrs Kajzer entered a marriage on a basis which centred solely upon economic issues and child care. That basis has continued. What has changed is Mrs Kajzer's ability to meet her financial commitments in their arrangement. That does not change the characteristics of their particular marriage. It does not lead to the conclusion that at the relevant time we are considering, they are now living separately and apart. Certainly, the atmosphere in the house may be tense but such tension does not by itself spell the end of the marriage. Mr and Mrs Kajzer have continued to live in the same house. Mrs Kajzer indicated that she proposed to continue to live in the same house with Mr Kajzer on the same basis. As she said, nothing would change. 34. We find that nothing has changed that would lead to the conclusion that Mr and Mrs Kajzer are living separately and apart at the date Mrs Kajzer lodged her claim for a newstart allowance. It follows that we consider her to be a member of a couple and that the income of her husband must be taken into account in determining whether or not she is entitled to be paid a newstart allowance." 6 The AAT dismissed her application because: "her entitlement [for newstart allowance] could not be determined as she was a member of a couple within the meaning of the Social Security Act 1991 ('the Act') and her husband had refused to provide information as to the details of his income." 7 It is apparent from the Tribunal's findings (as it is equally apparent from the SSAT decision and the internal departmental decisions that preceded it) that Mrs Kajzer's marriage to Mr Kajzer could not be regarded as of the traditional or orthodox kind. Nevertheless, it is only if the AAT made an error of law in coming to the conclusion on the facts presented to it that this Court has any power to intervene. 8 I have considered the various grounds raised by Mrs Kajzer both in her notice of appeal and in her written submissions, which I will make exhibit 1. Most of the matters raised are a revisiting of the points Mrs Kajzer sought to make to the AAT which the AAT summarised in its reasons in this way. "10. In presenting her case, Mrs Kajzer focussed initially on three complaints. The first centred upon her dealings with Centrelink which she described as unprofessional. The second centred upon what she described as the manner in which migrants to Australia must live without any assistance regardless of their European qualifications. The third centred upon what she described as the lack of assistance which she had received from employment agencies to find employment." The revisitation of those matters is an attempt to ask this Court to do something which is quite beyond its limited powers of review to involve itself in. 9 One of the points raised by Mrs Kajzer concerns her challenge to the rejection by the Department, and implicitly by the AAT, of the departmental form "Separated under the Same Roof" which she submitted on a number of occasions to the Department in support of her claim to newstart allowance and her associated claim that that be calculated without reference to her husband's income. It seems to me that that can be construed as raising a complaint that there may be an error of law in the AAT decision on the basis that it arrived at a conclusion of fact on whether she was "a member of a couple" within the meaning of that term in s 4 of the Social Security Act, when there was no evidence to support that conclusion. That kind of error in fact-finding, relatively rare though it is, is capable of constituting an error of law. See Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407 at 410 - 411. 10 However, it is apparent from the material before the AAT and the way the AAT arrived at its conclusion that its decision cannot be said to be affected with any such error of law. There was far more than a scintilla of evidence before the AAT well sufficient to justify its conclusion. This is not to say that this Court, if it were free to do so, would reach the same conclusion; simply that there was material, rationally sufficient to enable the AAT to come to the conclusion it did in the unusual circumstances of Mrs Kajzer's marriage to her husband. 11 At the hearing today, Mrs Kajzer pointed out that some months subsequent to the decision by the AAT she obtained a final divorce from the Family Court, a divorce which would appear to necessarily have been based upon a conclusion by the Family Court that Mr and Mrs Kajzer though apparently still living under the same roof have nevertheless lived separately and apart for the substantial period required before the Family Court can pronounce a divorce. It would seem that if Mrs Kajzer were to make a further application for newstart allowance to be calculated by reference only to her income, the fact that the Family Court has pronounced a decree would be a material consideration for the decision-maker to take into account. I do not suggest that it would necessarily compel the decision-maker to arrive at a decision in favour of Mrs Kajzer; only that it would seem to me to be a material matter. 12 But that is an area that this Court has no power to concern itself with. As I have said, it is only if there is error of law in the AAT's decision of May 1999 that this Court can intervene. For the reasons I have given, I have not been able to discern any such error of law. 13 The appeal must therefore be dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond. Associate: Dated: 9 March 2000 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondent: A. Horneman-Wren Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 March 2000 Date of Judgment: 8 March 2000