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Accident Compensation Cases

Ruka v Department of Social Welfare (CA, 01/10/96)

Judgment Text

The judgment of Richardson P and Blanchard J was delivered by 
BLANCHARD J (reserved):
Introduction 
This appeal from conviction for what is commonly called social welfare benefit fraud was argued both here and in the Courts below on the basis that no fraud was committed because the appellant beneficiary, Miss Ruka, was at all relevant times suffering from battered woman's syndrome. She had been rendered incapable of leaving her batterer and so could not be said to have been living in “a relationship in the nature of marriage” with him. However, during argument in this Court and in our deliberations in this difficult case there has emerged a different issue. We have concluded that the central question is, rather, whether there was such an absence of financial interdependence between the parties to the relationship that it could not properly be described as in the nature of a marriage for the purposes of the social welfare legislation and that on the very unusual facts of the case the result of the appeal does not depend upon the presence of the syndrome. 
For about 18 years from 1974 or 1975 Miss Ruka lived with a Mr T, to all intents and purposes in a de facto relationship. Between 1977 and 1992 she applied to the Department of Social Welfare for various welfare benefits without telling the Department that she was living with Mr T. She was prosecuted in the Otahuhu District Court on seven charges of wilfully omitting to supply material particulars (under s 127 of the Social Security Act) and six charges of fraudulently using a document to obtain a pecuniary advantage (under s 229A of the Crimes Act 1961). After conviction on all charges she was sentenced to 150 hours of community service and directed to make reparation of $44,759.93 at the rate of $10 per week. Although there is no appeal against sentence we comment in passing that the reparation order was inappropriate. Where there is no realistic prospect of payment being made within a very few years an order should not be made, at least for the full amount sought. 
Miss Ruka's appeal to the High Court against her convictions was unsuccessful. With leave from the High Court she now appeals to this Court on a question of law under s 144(1) of the Summary Proceedings Act 1957. Particular questions put forward for the consideration of this Court are as follows: 
“1.
Can the fact that a woman is suffering from ‘battered woman's syndrome’ be taken into account in establishing whether she is living in a ‘relationship in the nature of a marriage’ with the man who is battering her? 
2.
Can the existence of ‘battered woman's syndrome’ provide the basis of a finding that a woman lacks the necessary mental commitment to a relationship so that she cannot be said to be living in a ‘relationship in the nature of a marriage’ with the man who is battering her? 
3.
If so, could such a finding justify dismissal of charges against her under Section 127 of the Social Security Act 1964 and Section 229A of the Crimes Act 1961 alleging fraudulent receipt of a social welfare benefit, namely a domestic purposes benefit, when not entitled to do so because she was allegedly living in a relationship in the nature of a marriage? ”
Counsel instructed by the Auckland Women Lawyers' Association appeared by leave of the Court because the case was seen as raising issues of considerable public importance, particularly to women. The Court has been assisted by their submissions. 
Facts 
In describing the factual background to the making of the declarations to the Department we emphasise there was no challenge to any significant part of the evidence given by Miss Ruka or called by her counsel. The Department chose not to call evidence from Mr T. (We give him anonymity only because he was not a witness and has not had an opportunity of putting forward his account of relevant events. It is also possible that he may face criminal charges.) 
Miss Ruka was brought up in a violent home. She says she witnessed frequent assaults by her father upon her mother. From the age of 12 she too suffered assaults from her father who also exercised strict control over the social aspects of her teenage years. As a consequence she ran away from home on several occasions. She alleges that her father punished her with beatings when she was returned by the authorities. 
Some time after she had finally left home she was for 2 years or so in a relationship with a man who regularly beat and threatened violence to her. When she met Mr T and decided to move in with him she imagined that she had found refuge from such attacks. For the first year or so of their relationship there was no violence. But it was dramatically different after Mr T spent a short period in prison. Throughout the remainder of their relationship Mr T would viciously beat her about four or five times a week using fists, boots, and a variety of blunt objects as weapons. 
He used his dominance over her to prevent or limit her contacts with family members and friends. He was also in the habit of threatening her life with a shotgun. There was a continuing sexual relationship but, according to the unchallenged evidence of Miss Ruka, this was only because by physical violence and threats Mr T forced her to have intercourse with him. She described sex with him as rape. 
She felt helpless and degraded by his treatment of her. One consequence was that she would often vomit and lose control of her bladder when she knew that violence was about to occur. She drank to excess as a means of coming to terms with the violence. She was ashamed of what was happening to her but too frightened of Mr T to seek help even when hospitalised for treatment of broken bones inflicted by his beatings. He had made it very clear to her that if she left him he would come looking for her and would kill her. 
She bore him a child in 1977. Although he accepted that it was his own and was never guilty of mistreating the child, he played no part in looking after the boy other than occasionally taking him on outings. All domestic tasks and duties fell on Miss Ruka who had little or no help from Mr T. He came and went as it pleased him without explanation, excuse, or forewarnings. He evidently had a number of relationships with other woman. 
A crucial matter is that Miss Ruka never at any time received any financial support from Mr T. He left her to fend for herself and their child. Any money that he earned he spent on himself. He declined to make any contribution to household expenses, including food. Quite the contrary, at times he forced her to give him money for his own purposes. 
Mr T's attitude towards the obtaining of social welfare benefits by Miss Ruka is also significant. He told her that she would have to look after herself financially but did not suggest that she do this by applying for a benefit. Indeed, on occasion he told her to go off the benefit. He seems to have taken the position that it was over to her to finance herself by working or otherwise and was indifferent about how she managed to do so. In fact, for a good part of the 15 years covered by the charges Miss Ruka was in employment. When she had a job always she stopped taking benefit payments. In financial terms, then, she was like a solo parent without any source of financial assistance from the father of the child. She supported herself and the child by earning wages when she could and for the rest of the time by social welfare benefits. The allegedly false aspect of what she told the Department in a series of declarations was her repeated statement that she was not living in a de facto relationship with the father of the child whom she did not identify to the Department. 
In the opinion of a clinical psychologist, Dr Ratcliffe, called by Miss Ruka's counsel, Miss Ruka was throughout the relevant period suffering from battered woman's syndrome; the extreme violence and consequential stress inflicted upon her by Mr T made her incapable of rational decision-making and, in particular, unable to take steps to terminate their relationship. Miss Ruka was said to be in a situation of “learned helplessness” in her dealings with Mr T to such an extent that she had no ability to choose to leave him. We find it unnecessary, in the view that we take of the case, to enter upon a discussion of the battered woman's syndrome either generally or in the particular form said to have been suffered by Miss Ruka. It is sufficient to say that the evidence confirms that the violence and other forms of control exerted by Mr T over Miss Ruka detrimentally affected her ability to take a rational decision about continuance or otherwise of the domestic situation, although clearly it did not directly influence her decisions to claim benefits. Her subjection was such that she saw no way of bringing the relationship to an end. It finally terminated only when Mr T left her for another woman in 1992. 
Social Security Act 1964 
The rates of benefits made available by the Social Security Act 1964 are fixed in schedules to the Act and differ depending upon whether or not a beneficiary is married. Emergency and special benefits are granted by the Director-General under a discretion conferred by the Act but, again, account is taken of the marital status of the applicant. 
Section 63 provides that for the purpose of determining any application for a benefit or reviewing a benefit already granted or determining the rate of a benefit the Director-General has a discretion to regard as husband and wife any man and women who, not being legally married, have entered into “a relationship in the nature of marriage” and may determine the date on which they shall be regarded as having done so. The Director-General may then grant a benefit or terminate, reduce, or increase any benefit already granted from that date accordingly. It is implicit, although not directly stated in the section, that when a couple has ceased to live in the relationship the Director-General will revise or remove their benefit. 
Domestic purposes benefits have their own regime in ss 27A to 27H. An “applicant” includes a woman who is the mother of one or more dependent children and who is living apart from and has lost the support of or is being inadequately maintained by her husband: s 27B(1)(a). “Husband” includes a man with whom a woman has entered into a relationship in the nature of marriage although not legally married to him: s 27A(1). An applicant is entitled to receive a domestic purposes benefit if the Director-General is satisfied as to certain circumstances. These are, in respect of a woman not legally married, that she has attained the age of 18 years, is caring for a dependent child or children, and is not living together with her husband or with the other parent of the child. This reference to “living together” must be taken in its context to mean living with him in a relationship in the nature of marriage. Such a reading makes for consistency within the domestic purposes benefit provisions and with s 63. 
The judgments below 
Judge Bouchier recorded in her judgment that the Crown did not appear to take issue with Miss Ruka's evidence as to her family history of violence and the history of violence in the relationship with Mr T. The Judge was “perfectly satisfied that what the defendant is telling me is the truth”. She also accepted the evidence of Miss Ruka's witnesses. She then asked herself whether this was “not a de facto relationship because of the violence involved” and the effects of the violence on Miss Ruka. By de facto relationship she plainly meant a relationship in the nature of marriage. The Judge asked herself also whether the appellant had the necessary commitment to remain in that relationship in view of the effect on her of battered woman's syndrome. Despite the evidence of the violence the Judge concluded that there was a de facto relationship, although it was “an appalling one”. She then turned to the question of intent to defraud, which applies under both sets of charges, and found that it was present. Mens rea was therefore present. In coming to her decision the Judge did not consider the financial aspects of the relationship. 
In the High Court Barker J reviewed the evidence, including the expert evidence of Dr Ratcliffe, observing that the existence of battered woman's syndrome has been recognised in New Zealand in a number of cases (mentioning R v Oakes [1995] 2 NZLR 673 (CA)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] ). He too approached the appeal on the basis that the appellant did suffer from the syndrome. He referred with approval to the checklist made by Tipping J in Thompson v DSW [1994] 2 NZLR 369, 373; (1992) 11 FRNZ 402, 406 which Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] took into account observations made by Fisher J in Excell v DSW (1990) 7 FRNZ 239; [1991] NZFLR 241Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] . Tipping J's list of matters relevant to the existence of a relationship in the nature of marriage was as follows: 
“(1)
Whether and how frequently the parties live in the same house. 
(2)
Whether the parties have a sexual relationship. 
(3)
Whether the parties give each other emotional support and companionship. 
(4)
Whether the parties socialise together or attend activities together as a couple. 
(5)
Whether and to what extent the parties share the responsibility for bringing up and supporting any relevant children. 
(6)
Whether the parties share household and other domestic tasks. 
(7)
Whether the parties share costs and other financial responsibilities by the pooling of resources or otherwise. 
(8)
Whether the parties run a common household, even if one or other partner is absent for periods of time. 
(9)
Whether the parties go on holiday together. 
(10)
Whether the parties conduct themselves towards, and are treated by friends, relations and others as if they were a married couple. ”
Barker J noted some “indicia” of a relationship in the nature of marriage which existed in the present case: 
(a)
The parties had lived together for over 14 years, during which time they produced a child and during which time they changed their city of residence in the hope of improving their relationship; 
(b)
Throughout this lengthy period they shared a bedroom and kept their personal belongings each in the same room; 
(c)
The sharing of a sexual relationship, albeit at times violent and abusive; 
(d)
The sharing of social activities occasionally; 
(e)
Presentation to the outside world as a couple with a child ie a family unit; and 
(f)
The appellant's own recognition that she was in a de facto relationship (although the Judge said that recognition was not determinative but merely a matter properly to be taken into account). 
Against these circumstances Barker J balanced some other factors: 
(g)
The unremitting violence; 
(h)
The lack of financial support; 
(i)
The lack of emotional dependence; 
(j)
The limited sharing of parental obligations; and 
(k)
The alleged “extra-mural” emotional and sexual relationships by Mr T with others, including one relationship which produced a child. 
He thought it hard to see that the District Court Judge was wrong in deciding that there was a relationship in the nature of marriage based on “physical indicia”. He then considered the mental element: whether there was a “commitment for the foreseeable future”, using Tipping J's expression in Thompson. He concluded [at p 649] that it was impossible to say that the District Court Judge was wrong in her assessment: 
“although the appellant was trapped in the relationship she did have that necessary mental element because she stated she knew she was in a de facto relationship, whatever she thought that to mean; she elected to continue with the relationship although it might have been almost impossible for her to have got out of it. ”
We pause to comment that, with respect, there may seem to be an internal inconsistency, as the Judge perhaps recognises: can there really be said to have been an election of any meaningful kind to continue the relationship if it was “almost impossible” for the appellant to extricate herself? 
Barker J went on to say that the battered woman's syndrome cannot apply in a situation of this kind, as opposed to homicide cases like Oakes and R v Lavallee [1990] 1 SCR 852Has Cases Citing which are not known to be negative[Green] . In his view, with which we respectfully concur, it could not negative fraudulent intent. 
There are therefore concurrent findings below that Miss Ruka did at the relevant times suffer battered woman's syndrome. In this Court counsel for the Crown did not appear to challenge that finding. For his part, counsel for the appellant, Mr Driscoll, very properly accepted that it cannot be said that Miss Ruka lacked fraudulent intent because of the syndrome. She admitted setting out to obtain a benefit by concealing her relationship with Mr T. 
Relationship in the nature of marriage 
We are of the view that although checklists like that adopted in Thompson may give assistance in deciding some cases, it is more appropriate to begin an examination of whether a relationship in the nature of marriage exists in relation to a beneficiary by considering the purpose of the social welfare legislation. A circumstance which can be seen to be directly related to that purpose is to be given particular weight in determining whether a relationship is one in the nature of marriage. 
The Social Security Act 1964 does not have a statement of purpose as is often found in more modern legislation. Its Long Title says only that it is an Act to consolidate and amend the Social Security Act 1938 and its amendments. But the 1938 Act's Long Title does provide some guidance: 
“An Act to provide for the Payment of Superannuation Benefits and of other Benefits designed to safeguard the People of New Zealand from Disabilities arising from Age, Sickness, Widowhood, Orphanhood, Unemployment, or other Exceptional Conditions; to provide a System whereby Medical and Hospital Treatment will be made available to Persons requiring such Treatment; and, further, to provide such other Benefits as may be necessary to maintain and promote the Health and General Welfare of the Community. ”
The concern of the legislation was with the provision of financial help for people who for one reason or another could not adequately support themselves. An Act dating from that time could not have been expected to deal with de facto relationships, but there is a provision enabling a deserted wife to be granted a benefit as if she were a “widow”, one of the categories referred to in the Long Title. 
In the 1964 Act also there is an emphasis on loss of financial support. This is especially to be seen in s 27B which defines an applicant for a domestic purposes benefit as a woman who has “lost the support of, or is being inadequately maintained by, her husband”. Whilst the Act does not say that benefits are to be generally available on the basis of need (as the Ontario statute did in Re Proc and Minister of Community and Social Services (1974) 53 DLR (3d) 512), it is apparent that absence or inadequacy of financial support of an applicant with a dependent child is a central concern (cf Lambe v Director-General of Social Services (1981) 38 ALR 405Has Cases Citing which are not known to be negative[Green] ). 
In our view a relationship in the nature of marriage for the purpose of the Social Security Act is one in which an essential element is that there is an acceptance by one partner that (to take the stereotypical role) he will support the other partner and any child or children of the relationship if she has no income of her own or to the extent that it is or becomes inadequate. The commitment must go beyond mere sharing of living expenses, as platonic flatmates or siblings living together may do; it must amount to a willingness to support, if the need exists. There must be at least that degree of financial engagement or understanding between the couple. It will not, however, be negated by a refusal to support, or an arrangement that support will not be given, which is motivated by the knowledge that the dependent partner will then be able to claim a benefit. Such a stratagem cannot create a genuine absence of support. 
Where financial support is available nevertheless there will not be a relationship in the nature of marriage for this purpose unless that support is accompanied by sufficient features evidencing a continuing emotional commitment not arising just from a blood relationship. Of these, the sharing of the same roof and of a sexual relationship (especially if it produces offspring) are likely to be the most significant indicators. But, since the amendment to s 63 in 1978, the sharing of a household is not essential. And, particularly in the case of older couples, the absence of sexual activity will not in itself deprive the relationship of the character of a marriage. 
The statutory context is of great importance in determining what is a “relationship in the nature of marriage”. Other statutes use the same expression but for different legislative purposes. What is or is not such a relationship may be viewed differently for different purposes. For example, absence of financial support will be of much less significance when a relationship is considered under the Domestic Violence Act 1995. It is also to be noted that Parliament appears in that Act to have recognised the limitations of the expression and has extended the protection beyond a “partner” (including someone in a relationship in the nature of marriage) to a family member, a person who ordinarily shares a household, and someone in a close personal relationship with another. 
The expression “relationship in the nature of marriage” necessarily requires a comparison with a legal marriage but that is not a straightforward exercise. A simple balancing of equivalent features is not possible because for married persons financial obligations are not voluntary: the dependent spouse has some right to maintenance. Furthermore, it is not to be thought that because certain negative features (eg physical abuse, lack of emotional commitment) are found in some de jure marriages, the same factors in a relationship between a man and a woman who are not married are to be disregarded in determining whether that relationship is in the nature of a marriage. The comparison must seek to identify whether there exist in the relationship of two unmarried persons those key positive features which are to be found in most legal marriages which have not broken down (cohabitation and a degree of companionship demonstrating an emotional commitment). Where these are found together with financial interdependence there will be such a merging of lives as equates for the purposes of the legislation to a legal marriage. 
Application to this case 
In the present case the circumstances were abnormal in the extreme. There was a complete absence of any contribution of financial support on the part of the man and no willingness to contribute if needed. Quite the contrary, he made it very clear that he would support neither Miss Ruka nor their child and, according to the unchallenged evidence, spent all his money on himself. He seems to have been indifferent about whether she claimed a benefit. Miss Ruka had no means of her own when she was not employed (and when employed she did not continue on the benefit). They shared a roof, somewhat intermittently. They initially had a consensual sexual relationship which produced a child but during the period covered by the charges acts of intercourse, though frequent, were without her consent. In the way she described it there was nothing less than a long series of rapes. She submitted because of the use of force or the threat of it. That is hardly consonant with matrimonial sexual relations. 
This man and woman may have shared their lives — very much on Mr T's terms — and may to a casual observer have appeared to be a couple, though the observer would also have noted Mr T's associations with other women, but it is a distortion of reality to describe their relationship as one which by 1977 or at any time thereafter can fairly be equated to a marriage. As we have said, the primary focus should properly be on financial commitment, which was non-existent — at least in favour of Miss Ruka who seems to have been required to assist Mr T from time to time. On these facts we are satisfied that the relationship was not at relevant times one in the nature of a marriage. 

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