House and Anor and Secretary, Department of Family and Community Services [1999] AATA 929 (10 December 1999)

Last Updated: 21 December 1999

DECISION AND REASONS FOR DECISION [1999] AATA 929

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1120 and N1998/1220

GENERAL ADMINISTRATIVE DIVISION )

Re Robyn HOUSE

Applicant

And Neil COOTE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date 10 December 1999

Place Sydney

Decision The Tribunal sets aside the decisions under review, being the decisions of the Social Security Appeals Tribunal of 29 April 1998 in respect of Robyn House and Neil Coote, and in substitution therefor the Tribunal decides that Robyn House and Neil Coote were at no time during the relevant period a member of a couple pursuant to s 4(2) of the Social Security Act 1991, and that Robyn House is entitled to payment of carer pension at the single rate and Neil Coote is entitled to payment of disability support pension at the single rate at all relevant times.

...........Sgnd M T Lewis...........

M T Lewis

Senior Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - carer pension - applicants are ex-spouses sharing a residence - first applicant provides care to second applicant - whether living arrangements constitute a marriage-like relationship - whether applicants are a member of a couple for purposes of the Act - whether applicants should receive pension at the married rate.

Social Security Act 1991 - ss 4(2), 4(3)

Re Anderson and Secretary, Department of Social Security (AAT No. 8261A, 4 June 1993)

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

1. This is a review of two decisions of the Social Security Appeals Tribunal ("the SSAT") made on 29 April 1998 in respect of Robyn House and Neil Coote ("the Applicants") which affirmed decisions of a delegate of the Secretary, Department of Social Security as it then was and now the Secretary, Department of Family and Community Services ("the Respondent") to pay carer pension at the married rate to Ms House, and disability support pension to Mr Coote at the married rate on the basis that they are each a member of a couple.

2. The Tribunal had before it the documents provided by the Respondent in both matters pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Ms House T1; Mr Coote T2). In addition the following documents were tendered as evidence on behalf of the Applicants:

* Computer generated record of the Respondent dated 10 October 1995 (exhibit A);

* Copy of the Last Will and Testament of Neil William Coote dated 4 August 1992 (exhibit B);

* Renewal notice and receipt of GIO third party compulsory insurance in the name of N W Coote dated 15 March 1999 (exhibit C);

* Comprehensive insurance policy for motor vehicle of Neil William Coote dated 31 March 1999 (exhibit D);

* Signed statement of Gail Skelly dated 26 July 1999 (exhibit E);

* Signed statement of G Scott dated 12 November 1997 (exhibit F).

Additionally, both Ms House and Mr Coote gave oral evidence at the hearing. Both Applicants were unrepresented at the hearing. The Respondent was represented by Ms Brimson, a Departmental advocate. It was the Applicants' case that none of the criteria listed in s 4(3) of the Social Security Act 1991 ("the Act") applied in their case.

background

3. Nathan Coote, son of Robyn House, was born on 7 August 1980. Ms House and Mr Coote were married on 12 September 1981. Ms House claimed sole parent pension on 24 December 1990, stating that she had separated from Mr Coote on that date. However, on 6 May 1991 Ms House reported that she had returned to live with Mr Coote and requested cancellation of her sole parent pension. Mr Coote claimed disability support pension on 10 February 1992 (T43) and Ms House claimed wife's pension (T44). Both gave their marital status as "married".

4. On 2 October 1992 a property agreement was registered with the Family Court in Perth (T3) in which it was noted that the parties had separated on 28 March 1992. It was also noted in that agreement that Ms House and Mr Coote were joint Directors of the Company known as "Nerona Pty Ltd" and in the Family Trust known as "The Neil Coote Family Trust". Mr Coote had transferred to Ms House a property at 2 Rocklea Place, Mandurah, on the basis that Ms House would transfer to him her interest in the Company and the Family Trust. Ms House became the sole registered owner of the former matrimonial home at 2 Rocklea Place, Mandurah.

5. On 13 November 1992 Ms House and Mr Coote applied to the Respondent for payment of pension while they were overseas for ten days, and they made that application as partners (T2, T46).

6. In May 1993 Ms House advised the Respondent that she had separated from Mr Coote and had moved from 2 Rocklea Place, Mandura, to 40 Cambria Road, Mandura. On 11 June 1993 Ms House reclaimed sole parent pension. On 16 June 1994 Mr Coote advised the Respondent that he had moved from Perth to his mother's house at 15 Maltarra Place, Charlestown, New South Wales. Mr Coote paid his mother $95 per week in board and lodging. Ms House advised the Respondent on 5 September 1994 that she had moved from Perth to 2/2 Wall Close, Charlestown.

7. On 10 October 1995 Ms House and Mr Coote both moved to 10 Boatmans Road, Eleebana, and Mr Coote advised the Respondent that he was paying $100 per week board and lodging to Ms House. At that time the Respondent did not undertake a comprehensive review of the living arrangements, and indeed made a computer notation on the same date in the following terms (exhibit A):

Living arrangements are OK no need to review further. Client has moved in with ex-wife as he needs constant care when he requires traction due to his back injury (which happens very regularly).

8. On 19 April 1996 Ms House was advised that she would stop receiving sole parent pension on 8 August 1996 when her son turned 16 years of age (T52). On 30 July 1996 she claimed carer pension in respect of Mr Coote which was rejected on the basis that she was not providing full-time care for him (T12). She requested reconsideration of that decision, and on 30 August 1996 Mr Coote and Ms House were interviewed by a Departmental social worker, who assessed that Ms House was qualified for carer pension insofar as she was providing the requisite care for Mr Coote, and that Mr Coote and Ms House were a couple and therefore should be paid at the married rate of pension. That recommendation was accepted by a delegate of the Respondent on 12 September 1996, and that decision became the determination in respect of which, after various appeals by both Applicants, these applications are made for review by this Tribunal.

9. On 12 March 1998 the Applicants filed an application for divorce (T42), noting that they separated on 28 March 1992 and answering "no" to the question "Have you and your spouse lived under the same roof at any time after separation?". The Family Court granted a decree absolute on 14 May 1998 (T56).

the legislation

10. The Tribunal is required to consider whether the Applicants are a member of a couple as defined in s 4 of the the Act, which insofar as is relevant, provides -

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

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; or

all of the following conditions are met:

the person has a relationship with a person of the opposite sex (in this paragraph called the "partner");

the person is not legally married to the partner;

the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsection (3) and(3A)), a marriage-like relationship:

both the person and the partner are over the age of consent applicable in the State or Territory in which they live;

the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.

(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

(a) the financial aspects of the relationship, including:

(i) any joint ownership of real estate or other major assets and any joint liabilities; and

(ii) any significant pooling of financial resources especially in relation to major financial commitments; and

(iii) any legal obligations owed by one person in respect of the other person; and

(iv) the basis of any sharing of day-to-day household expenses;

(b) the nature of the household, including:

any joint responsibility for providing care or support of children; and

the living arrangements of the people; and

the basis on which responsibility for housework is distributed;

(c) the social aspects of the relationship, including:

(i) whether the people hold themselves out as married to each other; and

(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and

(iii) the basis on which the people make plans for, or engage in, joint social activities;

(d) any sexual relationship between the people;

(e) the nature of the people's commitment to each other, including:

(i) the length of the relationship; and

(ii) the nature of any companionship and emotional support that the people provide to each other; and

(iii) whether the people consider that the relationship is likely to continue indefinitely; and

(iv) whether the people see their relationship as a marriage-like relationship

mr coote's evidence

11. Mr Coote, aged 54 years, said in oral evidence that he first met Ms House in December 1979 on a cruise. At the end of the cruise they went their own separate ways, and Ms House went to New Zealand. About two months later she contacted him and they started "going out". He said that she told him on Australia Day that she was pregnant, and that was a few days before her mother died. He said that their relationship was intermittent after her mother died as she went to care for her father at Nelson Bay. Ms House was staying with her father when her son Nathan was born on 7 August 1980, and Mr Coote visited every six to eight weeks. Initially he said that this went on for two years, but he then recalled that he and Ms House were married on 12 September 1981 and they bought a house in Sydney (Greystanes) at that time.

12. Mr Coote suspected that Nathan might not be his child. However he has accepted Nathan as his son and his birth certificate was amended to show that Nathan was his child.

13. When they moved to Sydney Mr Coote was a buyer for Woolworths, a position which he held until January 1987. His next job was as general manager of a co-operative selling lawn mowers, which he held until June 1988. He and the family then moved to Western Australia. He bought a lawn-mower shop and planned to "semi-retire".

14. Mr Coote said that Ms House was working in a chicken shop at Castle Hill before they went to Western Australia. In Western Australia she worked part-time as a waitress, and also did the book work for their shop. He said that his business "got bigger and bigger", requiring him to work from 6 am until 9 pm six days a week. Then in 1991 his father became terminally ill and died on Australia Day 1991. Mr Coote put the business on the market and then returned to New South Wales.

15. Mr Coote said that the person to whom the business was sold was "a crook" and he had to take the business back after a month. A legal battle ensued over the next three years, which prevented him from leaving Western Australia. He said that during that time he and Ms House "broke up" because of the Court cases, and travelling more than one hundred kilometres to the Court hearing while also trying to run the business. At that time he said he was "sleeping in the back of a ute". He said that eventually they settled out of Court but in the meantime he had been "put into bankruptcy". He said that although the business was expanding it was not being run efficiently because of his lack of attention to management detail.

16. Mr Coote said that he moved to New South Wales the day after they settled the business dispute. The Tribunal notes that the Applicant moved from 2 Rocklea Place, Mandurah WA, to his mother's address at 15 Maltarra Place, Charlestown NSW, on 26 May 1994 (T50). Mr Coote said that he had separated from Ms House before the settlement of their business in late 1992. He could not recall when the separation took place but considered it was "months" previously. He said that at the time of the settlement he was living at "Watterson". He said that he finished operating the business in late 1992. He had injured his back in the process of moving out of the business, and that occurred at the same time as he separated from Ms House.

17. Mr Coote said that after they separated and while he was still in Western Australia he used to visit Ms House for meals occasionally, and he also took Nathan and Ms House water skiing in their boat. He said that they could cope with a limited social relationship but otherwise it was "cats and dogs". He indicated that Ms House "got dragged into" the business Court case, and finally when he was declared bankrupt the house was sold and Ms House used approximately $120,000 of the proceeds of the sale of the house to pay the other party's solicitor. He said that the rest of the money from the sale of the house was used to build a house in Newcastle for Ms House.

18. Mr Coote also said that after they separated for the first time in Western Australia, and as Ms House was not involved in the business it was transferred to him and the house at 2 Rocklea Place, Mandurah was transferred to Ms House. This is confirmed in a written agreement dated 28 March 1992 (T3, p13). However Ms House and Nathan continued to be directors of the business, and ultimately Ms House was joined in the legal action. He said that by the time he returned to New South Wales Ms House had already purchased a block of land in Newcastle in preparation for her return. Both Ms House and Mr Coote had family in Newcastle. When he returned to Newcastle he expected to see Ms House and Nathan "eventually". He said that when he returned to Newcastle he knew that Ms House's house in Mandurah had been sold but the contract had another ten months to run.

19. Mr Coote said that when he moved in with his mother for six months when he returned to New South Wales he found living with her to be very hard. She could not cope well with his care as she was 80 years old, and that was one reason why he decided to move out. When Ms House returned to Newcastle Mr Coote then moved from his mother's house to a unit just around the corner from where Ms House had moved. He said that he found it increasingly difficult to look after himself because of his back condition and he could not afford to pay for housekeeping assistance as well as rent. He disagreed with the statement he had signed on 1 November 1996 (T22, p62) which stated that Ms House had travelled daily to his unit in Charlestown from Eleebana to take care of him, which included cooking and cleaning. He said that the statement was written by an officer of the Respondent on his behalf and it was not correct. However he agreed that she visited him when he lived in the unit. He decided to move in with Ms House as the unit was costing too much.

20. When the house that Ms House was building was ready they both moved into it, and that is the house in which they are now living. He said that there was a separate area in the house into which he moved, and he negotiated with Ms House to pay $100 per week for board and lodging. In return Ms House provides and prepares his food, does the housework and maintains his clothes. If Ms House goes out she makes sure that his medication is available. Mr Coote pays the expenses associated with owning his own car.

21. Mr Coote considered that he is now a changed person compared with his behaviour when living in Western Australia at the time that his back was injured and when he was having difficulties with his business. He said that now he can be difficult when he experiences pain, but at other times he is easy to get on with. He said that he still finds it difficult to adjust to being "nothing" when compared with his previous work responsibilities.

22. Mr Coote said that his relationship with Ms House now is varied - at times it is explosive. He thought it was more difficult for Ms House to get over his outbursts than for him. Mostly however they live their own lives but pull in the same direction.

23. Mr Coote said that Ms House had undertaken voluntary welfare work two days a week from 10 am until 3 pm, and he watched television in his room or slept while she was away. She ceased the voluntary work about 18 months ago. Mr Coote said that on good days he does some gardening or work in the yard, or some light woodwork in the garage, but on bad days he is "doped up" with medication and stays in bed.

24. At times Mr Coote attends TAFE where he has been enrolled in a computer course. Ms House takes him to classes, and is also enrolled in a course of her own. She is then available to drive him home if he cannot manage. He agreed that it was not always necessary for Ms House to drive him to appointments and to the TAFE course, but he said that she did so about 90 percent of the time. At another point in his evidence he estimated that he drove himself about 50 percent of the time. He said that he drove to the hearing and Ms House accompanied him. He said that he had one "good day" to every 10 to 15 "bad days". He considered that his condition was getting worse. He said that on a "bad day" he needed her to give him his tablets, but once they had taken effect he did not need further attention from her. Ms House is then free to go out if she wants to.

25. Mr Coote said that they did not file an application for divorce until March 1998 because previously they understood that it would cost a considerable amount of money, but recently they became aware that as pensioners it would cost only a minimal amount if the divorce was uncontested. Mr Coote suggested to Ms House that a divorce would then enable her to get on with her life.

26. Mr Coote said that Nathan was told about the divorce when the decree nisi came through, and the reason given to him was that his parents were not able to get on with each other. Mr Coote said that Nathan was unaware that Mr Coote may not be his father. However he has no intention of telling him that.

27. Mr Coote has two children of a previous marriage. The Tribunal notes that his two daughters are the beneficiaries of his Will (exhibit B). He provided his Will dated 4 August 1992 as evidence that Ms House is not a beneficiary. The Tribunal notes that his estate is equally divided between his two daughters, and there was no reference to Nathan in the Will. He confirmed that this was his most recent Will. Mr Coote was somewhat confused as to who are the beneficiaries of his Will. At one point he said that he had left everything to Nathan, and at another point in his evidence he said that he thought he had left everything to Nathan and if Nathan predeceased him, his estate would go to his two daughters. He said at another point in his evidence that if his mother died he did not consider it fair that Ms House would share in his inheritance, and that was a motivation in seeking the divorce.

28. Mr Coote advised the Respondent on 10 October 1995 that he was living with Ms House, whom he described as a friend, who stayed away occasionally overnight at a "boyfriend's place" (T2, T6).

29. In cross-examination Mr Coote agreed that he moved from Western Australia to Charlestown (Newcastle) in New South Wales in August 1994. Mr Coote had discussed with Ms House that she and Nathan would return to Newcastle when the house was sold. The contract was settled after six to eight months. He said that Ms House had no money in order to travel to New South Wales unless the house was sold.

Mr Coote said that they did not discuss living together when Ms House returned to Newcastle. He said "she had her life, I had mine".

30. Mr Coote said that he pays Ms House "board and lodging" every week. Sometimes he pays $100 and sometimes $110. He explained that the variation arose from the need for him to have pain killers which Ms House buys for him. He considered that the amount he paid per week covered the cost of the service provided by Ms House to him. He agreed that she did the majority of the housework. He explained that this was because "she's a female, and it's her house." He also said that Ms House paid all the household bills.

31. Mr Coote disagreed that there was a pooling of resources between him and Ms House. He said that halving the bills was not an acceptable solution for him as Ms House also had to pay for Nathan. Indeed, he said "I just pay so much per week and she supplies everything."

32. Mr Coote said that when he moved in with Nathan and Ms House, Nathan was very happy because he could then help Nathan with his mathematics. He was asked whether he continued to provide emotional and practical support to Nathan, and he explained that Nathan no longer required it because he was "a grown up boy" at university. He denied that he had attended TAFE courses to assist Nathan with his mathematics. Mr Coote agreed that he had represented himself as Nathan's father on the AUSTUDY application form. He said that Nathan has always wanted to call him "dad" and Mr Coote has wanted that too. Mr Coote considered that it was important for children at school to be able to present themselves as having a mother and a father. However now that he is at university Mr Coote considered that it was reasonable to allow Nathan to know that they were divorced. He said that previously Nathan "knew that we were sort of not basically together". However, although Nathan presented himself at school as having a mother and a father, Mr Coote said that he and Ms House did not present themselves at school as husband and wife.

33. Mr Coote said that he has not had a relationship with any other woman since his marital difficulties with Ms House. He was not sure whether Ms House had any sexual relationship with another man since they separated and he said "that's her business, not mine". He was aware, however, that "she went out with a guy for a while", since she moved into her present house. He said that it did not concern him, but he asked her not to bring the man home because he did not think it appropriate for Nathan to know.

34. Mr Coote said that although he watched television in his own room, if he was well enough and if he and Ms House and Nathan were watching the same program they may watch it together.

35. Mr Coote said that he and Ms House did not go out socially, except occasionally to go shopping. He said that he does not go out much. He said that apart from one man who works full-time and telephones him once every four to six weeks, he has no friends.

36. Mr Coote said that he last had a sexual relationship with Ms House in Western Australia in 1991 or 1992 when they tried to re-establish their marriage. He agreed that his disability now prevented him from having a sexual relationship.

37. Mr Coote was asked in cross-examination:

Q. ... it would appear that there's quite an emotional bond between you and Ms House. Am I correct in saying that?

A. If I say yes, it's used against you. If I say no, it's - it's a lie.....yes there is an emotional bond. I mean, if you had a house cleaner and she came to you and said something happened to my son you'd feel upset about it. Well it's the same sort of thing with Robyn. I mean, if anything happened to her, yes I would feel upset. Is there an emotional bond, like if she were to come and say to me tomorrow that she's leaving, or that she's doing something else, I don't know. It's just another thing. Go on with it, but I mean I don't like seeing anyone hurt. ....

38. In cross-examination Mr Coote was referred to his application for divorce (T42, p125). Both Mr Coote and Ms House identified their address as 10 Boatmans Road, Eleebana. The application was dated 12 March 1998. Although both Mr Coote and Ms House gave the same address they also indicated at question 13 that they had not lived under the same roof at any time since their separation on 28 March 1992. Mr Coote agreed that this was an obvious error.

39. Mr Coote's attention was drawn to the change of address form lodged by Ms House on 12 May 1993 (T48), when she advised that she left her address at 2 Rocklea Place Mandurah on 24 April 1993. Mr Coote's change of address notification (T50) advised that he left the same address on 26 May 1994. Prima facie that would indicate that the separation occurred on 24 April 1993 and not 28 March 1992. It was also drawn to Mr Coote's attention that both he and Ms House, using the name of Coote, applied for payment of pension during an absence overseas for ten days from 17 November 1992, in relation to a "family crisis". He explained that he went with Ms House and Nathan to Hawaii in relation to a problem which members of his family had there following a cyclone. He said that the address on the form at that time was the address to which they both moved when they first went to Western Australia, and that was the address from which Ms House left subsequently and he remained. He was unable to say in his oral evidence whether they had separated at the time they went to Hawaii, but he recalled that they were having difficulty in their marriage at that time. He could not recall when they separated, and he could not account for the discrepancy in these documents. When asked why he wrote "28.3.92" as the date of separation on their application for divorce he said "just as a date I suppose". The Tribunal notes that Mr Coote's Will, which leaves his estate to his two daughters, was dated 4 August 1992. He indicated that they were not very careful or precise in identifying the date "28.3.92" as the divorce was not contested and he said "we just mutually agreed that it was going to be divorce and that was it". Mr Coote's explanation about his response in the negative at p.126 to the question whether they had lived under the same roof since separation was somewhat incoherent.

Ms House's evidence

40. In her oral evidence Ms House said that in 1980 when she returned from New Zealand she had a chance meeting with Mr Coote but she said "there was nothing in it". She said that by then she had been divorced from her second husband and Mr Coote had separated from his wife and children. Ms House insisted that she did not know who fathered Nathan and his birth certificated recorded that the father was "unknown". She said that it was after the cruise that she became aware that she was pregnant. Ms House insisted that there was no possibility that Mr Coote could have been Nathan's father. She also said that Mr Coote knew that she used to see her second husband. She thought Nathan looked a lot like her second husband. She agreed that Mr Coote knew she was pregnant and they used to see each other before Nathan was born. She said that at that time she was living in Merrylands in a unit on her own, and she was working. She said that at the time she was also visiting her father who was very ill, and subsequently she moved in with him. She and Mr Coote married on 12 September 1981 and moved to a house in Merrylands. She then arranged a carer for her father until he died.

41. Ms House could not remember whether she and Mr Coote had been separated before they moved to Western Australia in 1988. She said that Mr Coote had purchased a business there and he thought the lifestyle might be better.

42. Ms House said that she did not have much involvement in Mr Coote's business in Western Australia, although at the beginning she did the "paperwork". She said that she was a director of the business but she did not benefit from it financially. She said she did not engage in any other work in Western Australia. She said that the business went "okay" "until he got blackmailed and lost everything." At that time Ms House said that she and Mr Coote were separated, and that the problem with the business was in no way associated with their separation. She said that their relationship had difficulties because they "just didn't get on". She said that after they separated they formalised a property settlement through the Family Court. The house was transferred to her and the business was transferred to Mr Coote.

43. Ms House said that she and Mr Coote did not have much contact with each other in Western Australia after they separated. She said that Mr Coote rarely visited and he did not have much association with Nathan. At the time of their separation Nathan did not know that Mr Coote was not his natural father, but she noted that Nathan and Mr Coote did not have the close relationship that she had had with her father. She said that Nathan has known "for quite some time", which she then clarified as "close to two years", that Mr Coote was not his natural father. Before that time she said that he was suspicious of the fact, but he had not raised it with her. Ms House said that Mr Coote "had his own two girls that he used to look after", but she said that she did not have anything to do with them.

44. Ms House denied that she and Mr Coote had any period of reconciliation in Western Australia. She said that Nathan was having trouble at his school in Western Australia so she decided to return to Newcastle. Mr Coote had already returned to Newcastle about three months previously. It was unclear from Ms House's evidence whether or not she had disclosed to Mr Coote before he left Western Australia that she too was planning to return to Newcastle. She understood that he left Western Australia because he lost his business, he had hurt his back, his father had died and his mother needed help. She said that she found out later that he came back to Newcastle to help his mother, and that he was living with her. She denied having any discussions with Mr Coote about his plan to return to Newcastle and that she would come later.

45. Ms House said that she owned a house in Western Australia, but did not own it jointly with Mr Coote. She denied having any involvement in relation to the finalisation of Ms Coote's business. She recalled having to go to Court once but she denied paying any of her own money in relation to the legal costs. She thought they had been paid from monies from the stock from the business. She then said that that was a painful part of her life that she was trying to forget.

Ms House said that she thought she and Mr Coote "just grew apart" and that was why the marriage broke up. There were no other problems between them in Western Australia. She said that she knew she should not have married Mr Coote, but they were influenced by Mr Coote's father who believed that they should marry in order "to give the child a name".

46. Ms House said that in Western Australia Mr Coote was in constant pain because of his back injury, and she thought he was a bit annoyed that he could not go back to work. She did not recall whether that happened before or after their separation.

47. Ms House said that when she returned to Newcastle Mr Coote was living with his mother and Ms House was living elsewhere with Nathan. She rented a property while she looked for a house to buy with the proceeds of her house in Western Australia. Nathan was at high school at the time they returned to Newcastle, and Ms House said that Nathan wanted to visit Mr Coote. Ms House did not know what transpired between Nathan and Mr Coote, but in any event Mr Coote's mother said that Mr Coote would have to go elsewhere as she was too old and disabled to care for him. As he could not afford to pay for the help that he needed he suggested that the house that she had bought had plenty of room for him too. She said that he did not contribute financially to the purchase of the property, nor did he help her to look for a suitable property.

48. Ms House said that she advised Ms Coote that "there will be conditions if you move in". Ms House stipulated that she wanted her "privacy" and wanted to "live my life the way I do". She agreed to "give care and attention as required" to Mr Coote, and advised him that Nathan was under her control. She said that Nathan's school would not recognise Mr Coote's signature. Ms House said that Mr Coote has always had his own bedroom and his own crockery. He also has his own lounge room, TV and bathroom. She said that he moved in to her house about a day after she moved in.

49. Ms House said in answer to whether she went out with Ms Coote "I don't go out". She then corrected that by saying:

Sorry. I'll rephrase that. I have a letter here of a neighbour that I do go out with. The only time I may go with Neil is if he is in pain and can't drive himself to the doctor's or some therapy or some sort or he needs help somewhere".

Ms House agreed that she went out with that neighbour. Exhibit E is a statement from Gail Skelly provided by Ms House to the Tribunal dated 26 July 1999 which stated:

From the time I have known Robyn House & Neil Coote as neighbours I have formed the opinion they do not live as a married/de facto couple.

This opinion is based on my observation of the separate social life & living arrangements they maintain in Robyn's home.

50. Ms House said that she no longer had relationships with other men. She admitted to having more than one relationship since she returned from Western Australia. She also provided a statement signed by G Scott and dated 12 November 1997 (exhibit F) which stated, inter alia:

This is to verify that I have known Robyn House for a period of over 2 years and during this time that we have known each other, I can state that she is a single person and does lead a very private life.

51. In answer to a question from the Tribunal about the permanence of the current arrangement Ms House said:

Well, I don't mind if he moves out tomorrow. I'm not tying him to the front gate. He can go when he wishes. He has been trying to get alternative accommodation and someone to look after him in the capacity of a carer, but he can't do it. He has had - is it domiciliary - those people have been out. He's had nurses out. He can't get anyone else to look after him.

Ms House said that Mr Coote needs to be put on a traction machine either daily or every second or third day, depending on the pain. She said that she did not control his medication now, but "I might have in the start" because she found him taking "a few too many one day". Because of his high cholesterol he needs to have a controlled diet and is also taking medication for this. She said that he has difficulty working at the kitchen bench to prepare his food because the benches are too low for him, nor can he wash and wipe up because of this. He cannot do the washing or hang the washing out. She said that she is prepared to continue to care for him "until I decide differently".

52. Ms House said that she started attending Parents Without Partners last year but felt that she did not fit in. Nathan said that he did not want to go. She said that she now occupies herself doing gardening and craft work.

53. Ms House said that she did not provide Mr Coote with any assistance when she first returned from Western Australia and while he was living with his mother. In cross-examination Ms House explained that Mr Coote moved directly from his mother's house into her house, but then recalled when prompted that he had lived in a rented property for a while after he left his mother's house and that she provided assistance for him at that time. She then could not recall whether she had provided Mr Coote with any care while he was living with his mother.

54. Ms House said that she had had many difficulties with larrikins attempting to attack her son, and a previous husband had held a gun at her head. She said that she had suffered a lot and had difficulty remembering. She said that she had been taking Tryptanol.

55. Ms House said that there had been no special relationship between her and Mr Coote "for many a year". She said that Mr Coote pays her about $100 per week for board and lodging. She said that his food is different from that which she and Nathan eat, and he needs "different washing liquid". She prepares Mr Coote's food, and she and Nathan often eat later. It was rare that they ate together. She also said that it was not often that Mr Coote watched TV with her and Nathan.

56. Ms House said that she was surprised that Mr Coote had described his relationship with Nathan as one of father and son. Despite her evidence that until two years ago Nathan had understood that Mr Coote was his father, she said that she did not publicly present Nathan as Mr Coote's son, but she expected that it would have been assumed by people to be so.

57. Ms House said that she goes shopping with her neighbour, Mrs Skelly, occasionally, and she visits Mrs Skelly often, but that Mrs Skelly rarely visits Ms House and if she does then Mr Coote "gets up and goes out".

58. Ms House said of Mr Scott, whose statement is exhibit F, that she used to meet him regularly.

59. Ms House said that she did some voluntary work with Newcastle City Mission. She had asked Janice Wyatt, a welfare worker with the Newcastle City Mission, to provide a statement in respect of her claim to be paid at the single rate pension. That statement dated 18 August 1997 (T27) indicates that Ms Wyatt understood that she had known Ms House for over two years and confirmed that Ms House was "permanently separated from her partner". Ms House said that she had asked Ms Wyatt to write down what she knew.

60. A telephone conversation between an officer of the Respondent and Ms Wyatt is recorded at T29 dated 22 September 1997. It was noted that Ms Wyatt had assumed that Mr Coote was still in Western Australia and that Ms House lived alone. She did not know that they were living under the same roof, and said that her only knowledge of the separation was from Ms House. Ms House said that she did not know why Ms Wyatt had come to that assumption.

61. Ms House said that she has been separated from Mr Coote for 15 years. However at another point in her evidence she agreed that the date March 1992, which she told the Family Court as the date of separation, "would be right". At a later point she said that on 13 November 1992 they would still have been together (which was the date of their advice to the Respondent that they were temporarily going overseas). She also said that she was not saying that they were "together" at that time but she was still using his name. She said that she has not had a sexual relationship with him for "a very long time".

62. Ms House said that all the utility accounts (telephone, electricity etc) were in her name and she paid them. It was drawn to her attention that at T19 a social work report dated 9 September 1996 indicated that the accounts were in Mr Coote's name as he could get a pensioner concession. Ms House said that they had been changed to her name for some time now.

63. Ms House agreed in cross-examination that she had had periods of separation from Mr Coote. She was asked whether she kept in touch with Mr Coote during those separations. She replied that "not all of them, not regularly". She said that she did not have any feelings for Mr Coote when she returned to Newcastle. However, she said that when Mr Coote had asked her to look after him "I'm not one to turn anyone away".

64. Ms House was referred in cross-examination to the letter she wrote to the Respondent (T16) when she had been refused Carer Pension. She did not consider that that letter indicated that she was emotionally linked with Mr Coote.

65. Ms House said that the property settlement in the Family Court occurred before Mr Coote's bankruptcy. She denied that it had anything to do with a prediction that bankruptcy might occur.

66. Ms House was referred to her application for divorce (T24), and in particular to her statement that she and Mr Coote had not lived under the same roof since March 1992. She said that she had been "advised by someone to do that so it would just go through". She agreed that that information was incorrect.

67. Ms House was referred to T6 where Mr Coote had completed a living arrangements form and had noted that Ms House was a "friend" and that she occasionally stayed overnight at her boy friend's place. She said that at the time that was correct. When referred to a social work report at T19 that she had said she met her friend for drinks, she said "Yes, I would have met for drinks". She said "maybe I did stay over" when that form was filled out (10 October 1995), "and maybe I didn't when I answered [the social worker's] questions" (12 September 1996).

68. Ms House was asked in cross-examination what prompted her to divorce. She replied "well, why be married to someone you're not going to live with in a marriage-like situation". She said that she had understood that it cost a fair amount of money to obtain a divorce, but she then realised that it did not cost anything if they were pensioners. She also agreed, however, that she considered it would help her case with the Respondent. She said that her living circumstances were the same now as before the divorce.

69. Ms House's attention was drawn to the document she and Mr Coote signed on 17 November 1992 before they proceeded to Hawaii for ten days. Ms House noted that the address contained in that document was the address at which they lived before they separated, and it was the property which was later transferred to her name after they separated. The Tribunal notes that at T3 Ms House and Mr Coote filed an agreement with the Family Court on 28 March 1992 that they had separated on that date and that the property at 2 Rocklea Place, Mandurah was transferred to Ms House, and that the Company known as Nerona Pty Ltd. and the Family Trust known as The Neil Coote Family Trust, of which both parties were joint Directors, were transferred to Mr Coote. This agreement was registered in the Family Court on 2 October 1992. The Tribunal notes that both the signing of this document and its registration predated the date of the document at T3 which recorded that they both continued to live in the matrimonial home and apparently were not separated as Ms House continued to receive wife's pension arising from Mr Coote's disability support pension.

70. Mr Coote, in a Living Arrangements questionnaire dated 10 October 1995 (T6), declared that he was living with Ms House who was a friend. He also noted that he had lived with her previously at "Oakdale Close, Mandurah from July 1988 to June 1989". Indeed, on the evidence at T3 provided to the Family Court, they had lived together until 28 March 1992, and on the evidence at T46 they continued to live together until some time after their holiday in Hawaii in November 1992. When Ms House was asked at the hearing whether they were living together in November 1992 she replied "I don't know".

71. Ms House said that Mr Coote likes to keep up with computing by attending a TAFE course. She said that he tried to go by himself but he found he could not drive himself home. She decided that if his car was at TAFE it was difficult for her to pick him up in her car if he could not drive, so she decided to attend the course as well so that she was available to provide transport for Mr Coote. She said that he attends the course occasionally, and she sometimes goes without him.

72. When Ms House was asked whether she would get a job if Mr Coote decided to get a job she said -

I honestly don't think I'd get a job, as much as I would love to have one. I had one - the year before last I was doing telemarketing, and who doesn't do that. That was during the afternoon/evening, and that had to stop because the company said that they were changing their ideas... so I wasn't invited back......If I could get an office job I'd be as happy as a pig in mud, so to speak. I would love it. But I just can't. I've got no self esteem left, I haven't had any for years and years. I can't communicate with people. So I just basically stick to myself.

Evidence of gail skelly

73. Mrs Skelley provided a written statement (exhibit E) that she was a neighbour of the Applicants. She said that she had formed the view, based on her observation of the separate social life and living arrangements that they maintain in Ms House's home, that they did not live as a married or de facto couple. In her oral evidence she said that she had never seen the Applicants go out socially or go shopping together. She said that she believed "everything is in separate names and things like that, but ...that's just in general talk". She admitted that she had no knowledge as to whether they shared paying the household bills. She said that she "vaguely" knew Nathan as she had a son of the same age who attended the same university. She said that she did not know the Applicants well enough to know whether they shared the parenting of Nathan. She said that although she was a neighbour she was not a close friend. She said that Ms House "will pop in for coffee or I'll come down". Ms House "doesn't seem to go out" and so Mrs Skelly often calls in if she is going shopping to see whether Ms House wants to go with her. She said that she lived two houses up from the Applicants and she could not see the front of their house. Mrs Skelly said that Mr Coote does not accompany them, and she has not spoken with them about their going anywhere as a couple. She said that she did not know whether they went out together. She said that they "don't seem to mix with anyone very much" but she said "no doubt they've probably gone to the doctors together". She said:

There is never any talk like, we went to dinner somewhere, or we went to a club, or we did this or that. They don't seem to have a social life. Robyn seems to be looking for friends to get a social life for herself, so ... that's why ... it doesn't seem like ... they're living in a marriage or they're divorced, or a de facto relationship.

74. Mrs Skelly said that she first met Ms House when "Robyn started to pop up and talk to me". She said "I naturally assumed that they were married because it was a man and a woman living together, and then Nathan was there, so it was an assumption". She said that over time, as a result of general conversation, she "started to piece things together" and "realised that it wasn't a normal marriage". She was not aware of whether or not they had divorced, but at a later point in her evidence she said that it was only recently that she was aware that they had divorced. She also said that it was only a few months ago that she was aware that they had been married. She said "I've only known them since last year". She said that at times when she visits their house she is not aware of Mr Coote's presence. Mrs Skelly also said that she is rarely at home and does not get much opportunity to observe any interaction between the Applicants.

submissions

75. The Respondent's submissions were made in relation to the indicia listed in s.4(3) of the Act. In respect of the financial aspects of the relationship it was submitted that on the oral evidence there was a pooling of household resources and expenses. Mr Coote gives Ms House an amount of money each week to manage. She pools that with her own resources and is responsible for paying the bills. Mr Coote chose to move in with Ms House because he could not meet the cost of living elsewhere. It was submitted that the amount of money contributed by Mr Coote each week would not meet the costs associated with him being in the household.

76. It was submitted that in a boarding house the boarder would retain responsibility for paying some of his bills directly, and there would be an arms-length relationship that would involve people meeting the costs that they were incurring directly. Whereas Mr Coote paid 30 cents for his telephone calls, public telephones cost 40 cents.

77. It was submitted that at some stage utilities were transferred from Mr Coote's name to Ms House, which suggested that Mr Coote was attempting to pool resources for the benefit of the whole household. That would not be occurring in a boarding house. It was submitted that any move to have Mr Coote's name removed from the utilities may be seen as self serving for the purpose of these proceedings.

78. It was conceded on behalf of the Respondent that there was evidence of Mr Coote and Ms House having separate bedrooms, bathrooms, lounge rooms and television, but Mr Coote admitted to the three members of the household watching the same television programme together on occasions and that they eat meals together on occasions.

79. On the evidence Ms House undertakes the majority of the housework for both parties, and it was submitted that this demonstrates a shared living arrangement and a significant commitment by Ms House to the relationship. It was noted for the Respondent that Mr Coote referred to housework as "housewifely duties", and it was also noted that Mr Coote occasionally undertook activities around the house such as working in the garden and woodwork. It was submitted that the division of labour in the household was typical of many male/female relationships in Australia. It was also submitted that the work performed by Ms House in the household was no different from that undertaken by many women in a family-like relationship.

80. The Respondent submitted that there was a close interaction between the Applicants on a daily basis. Ms House cooks low cholesterol meals for Mr Coote and occasionally they eat meals together. Ms House obtains Mr Coote's medication, and in the past she has shown concern about the way he took his medication. She drives Mr Coote to medical appointments as required, and they both attend a computer course together to facilitate Mr Coote's transport.

81. It was submitted that both Ms House and Mr Coote took parental responsibility for Nathan, in particular to ensure that at school he was seen to have a mother and a father, although now that he is 19 years old he is less in need of parenting. However, it was noted that this claim dates back to July 1996, and at that time Nathan would have been 16 years old and still at school. Moreover, on the evidence of Mr Coote, there is an ongoing commitment on his part to ensuring that Nathan is brought up in a caring relationship, shielded from knowledge of the difficulties between his parents.

82. The respondent referred to the decision of the Tribunal in Re Anderson and Secretary, Department of Social Security (AAT No. 8261A, 4 June 1993) where emphasis was placed on the "considerable and significant sharing of responsibility for providing care and support to the two children" and the provision of a house to provide "the basis for the children to enjoy a more stable environment and ... to enjoy the benefits of a family relationship with her father". It was submitted that the circumstances in this matter are similar to those in Re Anderson (supra).

83. It was submitted for the Respondent that the enrolment of both Applicants together in the TAFE course was some indication of a social relationship. Additionally they occasionally go shopping together, although Ms House denies that. Although it was their evidence that they did not have any joint social activities, it was also their evidence that neither of them have much social activity of any nature.

84. It was submitted that the Applicants' neighbour, Mrs Skelly, in giving her evidence that the couple were separated, would not have the specific knowledge of the Act to be able to know the criteria to be considered in forming that view. It was submitted that Mrs Skelly gave her evidence as she saw it, but it was apparent that she did not get much opportunity to observe the Applicants' relationship, and little weight should be given to her evidence.

85. It was submitted for the Respondent that the evidence that there is no sexual relationship between the Applicants should not be taken to support their submission that they are not members of a couple. The reason for the absence of a sexual relationship was Mr Coote's disability. However, the Respondent was not prepared to go so far as to say that but for Mr Coote's disability there would be a sexual relationship.

86. In respect of the nature of the commitment to each other, there is a significant shared history, including that they have reared Nathan. It includes a failed business venture, and the movement from one State to another by both parties at similar times. While there have been short separations during this history, it was the Respondent's submission that throughout the separations there has been some ongoing contact between them.

87. On the issue of the Applicants' credibility, it was submitted that they had provided conflicting information to the Family Court and to Centrelink in respect of the date of separation. It was noted that the divorce application was a sworn affidavit, and that would seriously diminish their credibility. It was submitted that Ms House was not honest with Ms Wyatt insofar as she withheld some information from her when Ms Wyatt provided her written statement (T2, T27 p80).

88. In respect of Ms House's apparent inability to answer questions in cross-examination because of the effect of the passage of time on her memory, it was submitted that the Tribunal should give more weight to the contemporaneous evidence. Reference was made in particular to the undated letter from Ms House which requested a review of a decision which refused her payment of Carer Pension which appears to have been written in approximately August 1996 (T2, T16 p50-51) and a statement of Mr Coote dated 1 November 1996 (T2, T22 p61-65) in respect of the decision to treat him as a member of a couple. Ms House stated in her letter -

.... The man I look after was once a very fine representative athlete and to see him now, sometimes in tears, crawling around on his hands and knees because of the pain he suffers is enough to break your heart, yet he doesn't want the world to know. On the numerous times he has had complete relapses, it has taken all my strength to help him back to his bed and administer pain killing tablets - thank goodness I was present at these times, otherwise who knows how many of these tablets he would have taken.

This man has a lot of pride (one Neurosurgeon, called him stoic) and when asked by the Doctor if he requires 24 hour a day help to do routine daily bodily functions such as bathe, toilet and shower, he replied "not literally" which was taken by the Doctor as a "no", because this man felt that the forms being filled in would be read by some Officers in your Department and he didn't want them knowing that this once fit 51 year old, who used to do everything for himself, now requires someone to help him dress and even to bathe his lower body and assist in his toilet procedures. He didn't want himself "degraded" by people knowing that he requires this constant care and attention on a full time basis and that's why he doesn't want anyone to know how bad he is, and how much pain he is in - all because of his damned pride.

This man also used to drive Rally & Racing cars but, now on most occasions, I've even had to drive him to and from his Hydrotherapy, Hospital or Doctor, wait whilst he is treated (sometimes over 2 hours) and then drive him home, and yet he still keeps his own car, so people will think he can still drive - such is the pride of this person.

I apologise for having to ask for a review but as this man requires constant care and attention and I have to run my own life, clean the house etc., cook meals for my son & myself and then cook separate meals for this man (low fat - because he can't exercise properly), go shopping, take him to medical appointments, prepare my son for school, be on constant call for this disabled man and yet the Department have put me on Unemployment Benefits and expect me to go out looking for 8 jobs per fortnight (when I haven't worked for years as I was raising a baby by myself). This is too, too much - for Gods sake, I nursed my Dad (who had Cancer) until he died and now I am nursing this man and yet you expect me to give 36 hours per DAY to looking after everyone, and to hold down a job. There is no hope on God's earth any human being can do all this....

In Mr Coote's statement he said -

I wish to have the decision to be treated as a member of a couple reviewed as I do not believe that Robyn House and myself cohabitate. The reason we separated in the first place was because we were too much like brother and sister. Robyn is one of those people who goes out of her way to help people. I caught Robyn on the rebound, she was pregnant, her mother had died and her father was dying. I'd been in a big car accident and had a lot of problems. She just started looking after me and I married her and let her use my name for her son. I recovered and went into business. We separated whilst living in W.A. in 1992. This was before a bankrupcy (sic) case and I basically walked out. Robyn hated living in W.A. The whole time we have lived apart we have remained friends and kept in contact. The property settlement in 1992 had nothing whatsoever to do with the bankrupcy (sic) case. I moved back to NSW after my Dad died in 1992-93. I am unsure of the exact date. I moved in with my mother in Charlestown. I then moved to a unit in Madeleine St, Charlestown for a short time. In October 1995 I moved to Robyn's house at 10 Boatman Road, Eleebana. The reason I moved there was because Robyn had been travelling daily from Eleebana to my unit in Charlestown to take (sic) of me. She cooked and cleaned for me. I did pay her what little amount I could manage. Robyn and I mutually agreed I move to her home at 10 Boatman Road and I pay her board and lodging so she could continue to take care of me. She was getting a bit upset at having to travel so far to take care of me. I think Robyn took care of me because I had no one else to look after me. She needed the money. Our son Nathan, had been coming to stay with me and I had been helping him with his homework. It was mutually beneficial for all of us to live in the one home. I wish to state again that there is no sexual relationship between us. Robyn has her own friend but I decline to give his name because Robyn doesn't want him involved. We have separate bedrooms and bathrooms with locks on the doors. The home has four bedrooms and two bathrooms. We have our own separate furniture, television and wardrobes. I pay Robyn $140 per week for full board and lodging. Robyn does all the shopping, cooking, washing, cleaning and changes the beds. The home is in Robyn's name only, we have one car each, the telephone is in my name because I could get telephone allowance. We will have it changed soon now that Robyn is in receipt of a Carer pension. We do not go out socially together, she did take me once to a Xmas dinner in Civic park, she takes me to the doctors and swimming pool or physiotherapy. We are both enrolled in a TAFE computer course on Tuesday mornings. We travel together. I am doing the course to help our son with his maths. Robyn enrolled at the same time because she would have to wait around to bring me home anyway. We have no joint bank accounts or hire purchase agreements. I have left everything in my will to my son. The neighbours know us as Neil and Robyn. I do not know what they think about our marital situation. Our general practitioners would not know about our marital situation as it has never been discussed with them. The teachers at Nathan's school would assume Robyn was a single parent because she has filled out all enrolment forms and signs any letters required for school. I don't know what Nathan, our son, thinks about our relationship. He doesn't understand why we have separate rooms. I request that I have my 1996 pension concession card reassined (sic) to me as I don't want Robyn House's name on my card. Robyn is technically my nurse. The gas and electricity bills are in Robyn's name.

89. It was submitted for the Respondent that the filing of the divorce application may be perceived as self serving in light of the Respondent's decision that the Applicants were a member of a couple. Ms House's evidence to the SSAT was noted, that the only reason they were getting a divorce was because of the issue with their pensions. The Tribunal was urged not to give undue weight to their divorce.

90. It was submitted that significant support was provided by each Applicant to the other. They have daily contact with each other and have a shared living arrangement. They have a pooled arrangement for their living expenses. They have joint care and responsibility for Nathan, and a long history of a relationship with each other. In summary, it was submitted that the Applicants are living in a marriage-like relationship, and therefore the decision under review should be affirmed.

91. Ms House submitted that Mr Coote paid her for board and lodging, and it was not the case that there was pooling arrangements for their living expenses. Mr Coote paid her for what he used by way of utilities. She noted that previously the Respondent had not noted that they had separate lounge rooms, but she said that she had advised the Respondent of that fact previously. She also said in her submission that there were five bedrooms in the house and that she has also given that information previously. She said that Mr Coote, Nathan and she all clean and tidy their own bedrooms, and she cleans the rest of the house.

92. Ms House said that they obtained a divorce because she wanted to be classed as single and not as a member of a couple. She said that they live as separate people. She said that she "knows how she lives" and she was concerned that Social Security did not believe her. She said that she and Mr Coote lived separate lives and do not "hang around" each other. She noted that she has tried to make other friends but she has not succeeded. However, even though she does not have friends she said that she does not live the life of a hermit. She has some social activity with Mrs Skelly.

93. Mr Coote submitted that when a woman cleans the house she does not necessarily do it "out of duty for a couple". In respect of pooling resources, he said that he pays his own bills, car insurance and registration. Sometimes but not always they watch television together. It was no more than an occasional activity.

94. Mr Coote noted that for a time he and Ms House had lived separately in two different States. Given Nathan's awareness of that separation it did not make sense to say that they wanted to stay together and not get divorced for Nathan's sake because he did not perceive that there was a problem in their relationship.

95. Mr Coote said that he returned from Western Australia to live in Newcastle because he considered Newcastle to be "home".

consideration of evidence and findings of fact

96. There was sufficient inconsistencies in the evidence overall for the Tribunal to have real concern about the credibility of both Applicants. It is likely that their evidence was tailored to the goals they were trying to achieve, that is, to prove that they were not living in a marriage-like relationship. They have demonstrated that in another jurisdiction (the Family Court) their commitment to the truth was affected by what they were trying to achieve, that is, a divorce. In the context of their evidence, which the Tribunal did not always find consistent, the responsibility of the Tribunal is to make the correct or preferable decision, doing the best it can with the evidence. While I had some doubt about some of the evidence, there was sufficient consistency in the evidence over time on issues central to the questions now before the Tribunal, to come to a decision to my reasonable satisfaction.

97. The Tribunal finds that if in fact the Applicants were involved in a major misrepresentation of their present circumstances then it is unlikely that they could have achieved such consistency in the evidence. It is much more likely that the inconsistency which appeared in their evidence arose, at least in part, from their attempt to tailor their evidence to improve their chance of success. While that makes the task of the Tribunal more difficult, it does not mean that the Tribunal must disregard their evidence. Rather, the Tribunal must be particularly wary in accepting the evidence, and that is what I have attempted to do.

98. As the Applicants have now been divorced, paragraph 4(2)(a) does not apply. In considering whether the requirements of paragraph (b) are satisfied, the Tribunal must give consideration to s 4(3). In so doing the Tribunal must have regard to all the circumstances of the relationship, including, in particular, the indicia set out in paragraphs (a) to (e) as outlined in paragraph 10 of these reasons for decision. I shall now deal with each paragraph in turn:

(a) There is no joint ownership of real estate or other assets, nor are there joint liabilities. The Tribunal finds on the evidence that there is no joint pooling of financial resources in relation to major financial commitments. This is in sharp contrast to a previous period when they were married and when there was joint ownership in a business and in their house. While it is possible that the property settlement was designed to ensure that the Applicants did not lose their house when bankruptcy was imminent, the Tribunal is reasonably satisfied that there is now no joint ownership of any assets.

The Tribunal does not accept the Respondent's submissions that Mr Coote's payment of board and lodging to Ms House should be seen as a pooling of financial resources. He is merely paying an amount to Ms House each week for the board and lodging which she provides for him in her house. Any variation in the amount which he pays is a consequence of Mr Coote needing more medication. The fact that Ms House physically purchases that for him when she goes shopping is consistent with her role of carer. It does not represent an illustration of their pooling their finances. The Tribunal finds that there is no sharing of day-to-day household expenses. Mr Coote pays a standard amount each week for board and lodging, and Ms House pays for all utilities and food. Mr Coote pays for his own telephone calls. The Applicants have no legal obligation to each other.

(b) The Applicants live in the house with Nathan. There is some conflict in the evidence as to whether Nathan is the child of Mr Coote. Ms House's evidence is that she is quite sure that he is not Mr Coote's child although she agreed some years ago to have Nathan's birth certificate changed to show that he was Mr Coote's child. There appears to be a bond between Mr Coote and Nathan, and it is obvious that Mr Coote would like to think that Nathan was his child. He obviously accepts Nathan and wants to ensure the best environment for him. The fact that the Applicants married when Nathan was an infant is sufficient to underpin the bond which Mr Coote has for Nathan, whether or not there is a biological factor involved. However, the Tribunal has some considerable doubt whether Ms House allows Mr Coote to function much in the parental role. The Tribunal is reasonably satisfied that during the relevant period, that is since September 1996, Mr Coote has not had joint responsibility for providing care or support of Nathan, despite his attempts to be actively involved.

The Tribunal accepts the evidence of the Applicants that Mr Coote has his own bedroom, bathroom and lounge room in Ms House's house. This does not exclude occasional use of each other's space at least for the purpose of the common viewing of television. The Tribunal has some difficulty with Ms House's evidence that Mr Coote does his own housework. That is inconsistent with Mr Coote's evidence and it does not sit comfortably with the level of back disability alleged. Nor does it sit comfortably with Ms House's letter to the Respondent in 1996 (T2, T16) and Mr Coote's statement of November 1996 (T2, T22). The Tribunal finds that Ms House does most if not all of the housework and that is not unexpected when she is providing board and lodging for Mr Coote. I hasten to add that Mr Coote appears to get good value for his $100 to $110 per week board and lodging. Even if the Tribunal accepted the figure paid for board and lodging of $140 per week (T2, T22 p63) Mr Coote is getting cheap board and lodging. On the other hand, however, the Applicants' evidence was that it was agreed that he would move in with Ms House because he could not afford to live independently and pay for someone to provide the assistance which he needed.

The living arrangements described in their evidence are consistent with Ms House being the carer of Mr Coote, without there being any greater extent to the relationship.

(c) The Tribunal finds that there is insufficient evidence to support a conclusion that the Applicants hold themselves out to be married to each other, although nor do they make any effort to discount that assumption by others. They have not told their local doctor that they are not living together in a relationship, and it was some time before Mrs Skelly's assumptions to that end were dispelled. The Tribunal accepts the evidence of the Applicants and Mrs Skelly that they have no friends or regular associates, and that rarely do they engage in any joint social activities.

(d) The Tribunal accepts the evidence of the Applicants that they have not had a sexual relationship for some years. In part at least that relates to Mr Coote's physical condition, but it is also related to the breakdown of their marriage relationship.

(e) The Applicants have known each other over a period of nineteen years, and for most of that time they were married, although they spent some time separated during the period before they were divorced. Indeed it is difficult to identify, on the basis of the evidence of the Applicants, for what periods of time they were separated. Their evidence was in conflict on this issue, and the oral evidence was not consistent with contemporaneous documentary evidence, which itself was in conflict. Doing the best I can with the evidence I find that there were significant periods of separation while they lived in Western Australia, followed by a further significant period of separation when they returned to Newcastle. The Tribunal accepts that their return to Newcastle was not simultaneous. They advised the Respondent's social worker in 1996 that they had been separated for six years (T2, T19), and although it is likely that that was not in one single period, it is consistent with the oral evidence provided to the Tribunal. Moreover, if one accepts their evidence that their present living arrangement under the same roof is only for the purpose of providing board and lodging and some physical assistance for Mr Coote, then the total period of their marital separation is nine years, being almost half the time they have known each other.

It is doubtful that the Applicants provide companionship for each other. There is little evidence of that. At most there is evidence of emotional support and care and concern for each other, and their present arrangements appear to be stable. The Tribunal finds that if Ms House was able to establish herself in a marriage-like relationship with someone else she would not continue to offer accommodation and care for Mr Coote. Moreover, neither party appeared to have an interest in restoring their relationship to its previous status. At the same time, both parties appeared to accept that the present arrangement met their own needs at the present time.

99. The Tribunal is required to have regard to all the circumstances of the relationship, taking the abovementioned indicia into account in particular. Taking all the evidence into account the Tribunal finds that while there is some strength in some factors in the relationship, overall it has very little resemblance to a marriage-like relationship. What remains are the last fragments of a marriage which has now been formally dissolved. Although one might argue in debate that while anything that resembles a marriage remains and the parties are living under the same roof then a marriage-like relationship exists. To that argument I would say that that is not consistent with s 4(3) of the Act which requires me to have regard to all the circumstances of the relationship. When the evidence in favour of there being a relationship of the required order is very sparce, as it is in this case, one cannot be reasonably satisfied, taking all the circumstances of the relationship into account, that a marriage-like relationship exists.

100. Reverting now to paragraph 4(2)(b) of the Act, while the Applicants have a relationship of the sort defined in subparagraph (i) and they are now not legally married to each other, the relationship is not one which in the Tribunal's opinion, having regard to the criteria in s 4(3) of the Act, is a marriage-like relationship. Therefore, the decisions under review, being the decisions of the SSAT of 29 April 1998 in respect of both Applicants, are set aside, and in substitution therefor the Tribunal decides that the Applicants are not persons who are a member of a couple for the purposes of s 4(2) of the Act. Therefore Ms House should be paid carer pension at the single rate and Mr Coote should be paid disability support pension at the single rate at all relevant times.

I certify that the 100 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis,

Senior Member

Signed: ..Sgnd.....................................................................

Associate

Dates of Hearing 27 July and 12 August 1999

Date of Decision 10 December 1999

Representative for Applicants Self Represented

Advocate for the Respondent Ms A Brimson, Admin Law Section Centrelink