"SRLL" and Secretary, Department of Family and Community Services [2000] AATA 97 (14 February 2000)

Last Updated: 17 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 97

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/556

GENERAL ADMINISTRATIVE DIVISION )

Re "SRLL"

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr I R Way

Date 14 February 2000

Place Sydney

Decision The decision of the Social Security Appeals Tribunal dated 25 March 1999 is set aside and in substitution it is decided that the Applicant was not, and continues to be not a member of a couple pursuant to section 4 of the Social Security Act 1991 with effect from September 1992.

(Sgd) I R Way

..............................................

Member

CATCHWORDS

SOCIAL SECURITY - whether Applicant was a member of a couple - Applicant legally married - whether living separately and apart on a permanent or indefinite basis - whether special reason to treat Applicant as a single person - whether debt - if so whether special circumstances exist to waive debt.

Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164

Re Holmes and Secretary of Department of Social Security (AAT 4046, 23 December 1987)

Social Security Act 1991 ss 4, 24, 1224, 1237, 1237AAD

REASONS FOR DECISION

Mr I R Way, Member

1. This is an application by SRLL ("the Applicant") for review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 25 March 1999, which affirmed a decision of the Secretary, Department of Social Security, now Department of Family and Community Services ("the Respondent") that the Applicant was not living separately and apart from his wife.

2. As a result of this decision the Respondent determined that the Applicant had been overpaid $10,454.06 Newstart Allowance over the period 14 January 1993 to 6 April 1994, and overpaid $23,834.60 in Disability Support Pension over the period 7 April 1994 to 11 June 1998. The Respondent further determined that the total overpayment of $34,288.66 was a debt to the Commonwealth, which should be recovered from the Applicant.

3. The Tribunal had before it the documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1 - T1 to T64).

4. At the commencement of the hearing it was submitted for the Applicant that unless the Applicant had full access to certain original documents (T6, T28, T42 and T63), which were currently subject to a confidentiality order pursuant to s 35 of the Administrative Appeals Tribunal Act 1975, the Tribunal should give no weight to these documents. The Tribunal rejected the submission on the basis that all of the relevant material within the documents was before both parties, and the Applicant was not deprived of a full opportunity to deal with any matter before the Tribunal that might be adverse to the Applicant's interests. It was further submitted for the Applicant that the circumstances surrounding the Applicant and his wife, in respect of malicious threats against him and others, were such that the Tribunal should suppress the publication of the names of the Applicant and all witnesses. The Tribunal deferred consideration of this submission until the conclusion of the hearing. At the conclusion of the hearing the Tribunal issued an order pursuant to s 35(2)(aa) of the Administrative Appeals Tribunal Act 1975 prohibiting the publication of the names of the Applicant and witnesses.

5. Three documents were received into evidence for the Applicant (Exhibits A1, A2, A3) and three documents were received into evidence for the Respondent (Exhibits R2, R3, R4). Oral evidence was given by the Applicant, the Applicant's wife and a friend of the Applicant. Evidence was given by telephone by the Applicant's local medical officer and another friend of the Applicant.

ISSUES

6. There is no disagreement between the parties that the principal issue in this matter is whether or not the Applicant is a member of a couple pursuant to s 4 of the Social Security Act 1991 ("the Act"), and therefore qualified for single rate of disability support pension.

7. If this issue is resolved such that the Applicant is found to be a member of a couple, further issues arise as follows:

(a) whether there are special reasons pursuant to s 24 of the Act such that the Applicant can be treated as a single person;

(b) whether the Applicant was overpaid Newstart Allowance and Disability Support Pension in the period between 14 January 1993 and 11 June 1998 and whether such overpayments constitute debts to the Commonwealth; and

(c) whether there are special circumstances pursuant to s 1237AAD of the Act so that a discretion to waive all or part of any debt should be exercised.

Legislation

8. The Act, in so far as is relevant, provides as follows:

"4 (1) In this Act, unless the contrary intention appears:

...

member of a couple has the meaning given by subsections (2), (3), (3A), (6) and (6A),

...

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

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

...

4 (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 household, including:

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

(ii) the living arrangements of the people; and

(iii) 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.

..."

Section 24 of the Act provides a discretion under which a person may be treated as not being a "member of a couple", and follows as relevant:

"24 (1) Where:

(f) a person is legally married to another person; and

(g) the person is not living separately and apart from the other person on a permanent or indefinite basis; and

(h) the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;

the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act."

..."

Section 1224(1) describes the circumstances which give rise to a recoverable debt, and follows as relevant:

"1224 (1) If:

(a) an amount has been paid to a recipient by way of social security payment; and

(b) the amount was paid because the recipient or another person:

(i) made a false statement or a false representation; or

(ii) failed or omitted to comply with a provision of this Act or the 1947 Act;

the amount so paid is a debt due by the recipient to the Commonwealth.

Note: If the person does not pay the debt or enter into an agreement to pay the debt within a certain time, interest may become payable on the debt (see section 1229). If the person enters into an agreement to pay the debt and breaches the agreement, interest may become payable on the debt (see section 1229A)."

1237 (1) On behalf of the Commonwealth, the Secretary may decide to waive the Commonwealth's right to recover the whole or a part of a debt from a debtor only in the circumstances described in Section 1237A, 1237AA, 1237AAA, 1237AAB, 1237AAC or 1237AAD.

...

1237AAD The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(i) the debt did not result wholly or partly from the debtor or another person knowingly:

(i) making a false statement or a false representation; or

(ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and

(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

(c) it is more appropriate to waive than to write off the debt or part of the debt.

Note: Section 1236 allows the Secretary to write of a debt on behalf of the Commonwealth."

9. There were, at the outset, a number of facts agreed between the parties and accepted by the Tribunal (Exhibits A3 and R4). These agreed facts are set out in sub-paragraphs (a) to (o) below:

(a) The Applicant is 64 years of age. He migrated to Australia in 1949 and lived first in Nelsons Bay, then Sydney.

(b) He worked for some 17 years in advertising and publishing industries, then became a self-employed artist.

(c) He first married in the early 1960's while he was working as an artist. His first wife worked as a graphic artist. Their marriage lasted approximately 12 years, and they had 2 children.

(d) During this marriage the Applicant and his wife had bought a house together. He agreed to transfer it entirely into her name at the time of separation in exchange for an agreement that she seek no further maintenance from him for the children. It was an informal property settlement between them, he signed the transfer but there was no further documentation.

(e) After his divorce, sometime in the early 1970's he was living on his own in rented apartments in Collaroy and then Maroubra.

(f) He met his second wife-to-be through mutual friends around 1979. They started seeing each other and after some time they moved in together to his place in Maroubra.

(g) After some months of living together they decided to get married. Following the marriage they moved into a rented flat in Brighton Le Sands.

(h) The Applicant and his wife maintained separate accounts from the beginning of their relationship. They pooled their financial resources and shared all expenses. They slept in the same bedroom, and had a sexual relationship. They ate meals together and did social activities together. They spent Christmas with each other's families.

(i) In the mid 1980's the Applicant began to suffer health problems. He had a gall bladder operation in 1985. There were complications with the operation, and he had to have another one some years later.

(j) A few years after that he was partially retrenched from his job at the St George Leagues Club. He has difficulty recalling this period clearly as it was during this time that he began drinking heavily. The relationship with his wife became strained as a result and around this period she left him for a trial separation. He stayed on at the Brighton Le Sands flat, and she went to live with her friend. They saw each other on occasion while they were separated.

(k) Throughout this period, the Applicant self supported by his artwork, selling paintings to galleries, etc.

(l) In around 1989 they reconciled and his wife returned to live with the Applicant at the flat in Brighton Le Sands. The Applicant was still not very well at this time. He states that he had eased up on the drinking but was taking anti-depressant medication. They both wanted to try to make the relationship work.

(m) Around this time they bought a block of land on the South Coast with an idea that this would be where they would retire to. The land cost approximately $18,000. His wife took out a personal loan for the purchase price. They were still pooling their financial resources at this time and the Applicant contributed to the shared expenses.

(n) In August 1991, the Applicant and his wife applied for a loan to build a house on the South Coast property. They jointly borrowed $65,000. The house was built by early 1992. By this time both the Applicant and his wife had decided to move into it immediately. The Applicant's wife was still working in Sydney at this time but had decided to move to the South Coast anyway and commute. She intended to look for work in the local area. She arranged to stay with a friend in Sydney a few nights a week when she was working.

(o) The arrangements between the Applicant and his wife continued mostly as before in the first few months of this period. They pooled financial resources, she continued to do most of the cooking and cleaning, they still at this stage were sharing a bedroom and had a mutual commitment to the relationship.

EVIDENCE FOR THE APPLICANT

10. The Applicant told the Tribunal that he became miserable shortly after moving to the South Coast. His wife could not find work locally and continued to work in Sydney for four to five days a week, a local friend moved away and he was on his own and this "left me holding the dog". He said he tried hard to continue with his artwork and unsuccessfully tried to take up golf. He described relations with his wife in the initial months as okay, but 12 months or so after moving to the South Coast his wife moved out, taking all her clothes and going to live with a friend in Sydney. He said the reason she moved out was because of his drinking and that she had done this before when they were living in Sydney because he "hit the bottle a little too hard". He told the Tribunal that his wife said she would come back if he stopped drinking but he said even though he agreed to do this "stopping drinking is another matter". He also told the Tribunal that he did not fight with his wife when drinking, he was in poor health at this time, and his health further deteriorated.

11. In regard to the joint ownership of the South Coast house he said there was no change to loan repayment arrangements after his wife left and they continued paying equal shares of mortgage repayments. He told the Tribunal that his wife would leave the equivalent of $80 per week cash with him when she visited the house, which she did regularly, the frequency depending on the days she was working in Sydney. He said he paid the total mortgage repayments through his bank account, which was credited with his DSS payments, and used the cash in hand for normal living expenses. The arrangement with his wife was that he would pay the bills for electricity, gas, rates and insurances and she would look after the garden, the house generally, and pay their joint Medibank Private subscription.

12. The Applicant said that when his wife visited the house they never ate meals together, did not share a bedroom and that if he could he would go somewhere else while she was there, either to the local club, or a friend's place, or to one of his sons. He said he considered himself to be totally independent, did his own cooking, vacuuming and washing up. His wife did not ask about his health when she visited and he never inquired about her time in Sydney.

13. The Applicant was shown an agreement, which had his signature on it, dated 1 September 1995, in which he agreed that should the South Coast property be sold or should his wife die, he would repay to her, or her two children, a sum of $35,000 which she had contributed to their home loan account and to the payment of rates from an inheritance. He said he did not remember signing the document, but that it "seems to be right". He said he was asked to sign the document and did not see any reason why he should not do so. He said he was not sure if he had a copy of this agreement but he would honour it if his wife died. In cross-examination it was put to the Applicant that he had told the SSAT that his wife's inheritance was $50,000. He denied he told the SSAT this and he said that he had no idea where the SSAT got this figure. He also said his wife does not tell him everything and that he could have been drunk when he signed the agreement. The Applicant told the Tribunal that shortly after moving to the South Coast the car he and his wife owned was written off after falling off a hoist while being serviced. He said his wife needed a car and a replacement car was purchased registered in both their names, using both their names for additional finance. He said he did not need a car but occasionally did drive it. In cross-examination he was asked why he went with his wife by car to take the dog for grooming and why the Happy Dog Grooming Shop would know him by name. He said that he went in the car because the dog needed restraining during the journey and that his wife may have mentioned his name to the people in the shop.

14. The Applicant described his relationship with his wife as amicable at all times, but that his trust in her had waned. He knew she had seen someone else. In cross-examination the Applicant said he only knew about his wife seeing one man. He agreed that he had not had a sexual relationship with his wife prior to her leaving in 1992 and also prior to that time they had stopped sharing a bedroom. He said that he did not consider sexual relations important and that mutual respect was more important. He could not say if he still loved his wife, but he said he still cared for her; the situation was not hopeless; he still considered himself married and he had no intention of getting a divorce. He said he had thought about divorce but up to now this course of action had not suited him. He was concerned that if there was a divorce, and the house had to be sold, he would get too small an amount to do anything with and it was better to jointly hold the house until it was paid off to get a better return on the investment. He said he did not have a will. He said that most of his friends and relatives would know he and his wife were separated. He said his two sons from his first marriage did not come and see him but that he kept in touch with them by phone and described his relationship with them as good apart from minor tiffs. He said he visits one of his sons in Camden.

15. Further in cross-examination it was put to the Applicant that his separation was a sham and that his State Bank account details (T17/120-167) showed a spending pattern that was not consistent with that of a pensioner. He vehemently denied that his separation was a sham, and in regard to spending patterns maintained that his bank account records did not take into account the $80 cash in hand that he was receiving from his wife and using for general living expenses.

16. In re-examination the Applicant agreed that he had difficulty in remembering things, that he was having difficulty in living on reduced Social Security payments currently of $177.70 per fortnight, had cut down on his drinking and had to borrow from a friend to whom he owed $1,000. He said he had not had to pay any mortgage payments since June 1998 but that his wife still gave him $80.00 a week in cash.

17. The Applicant's wife (witness B) told the Tribunal that she was 39 years old when she first met the Applicant and that at that time she had a daughter aged 20 and a son aged 17 years from a previous marriage.

18. She said she and her husband were not great social people, were not party goers and had a small circle of friends. She said they had a normal sexual relationship, did not shop together, but did most other things as a couple. They had separate bank accounts with no strict budget or rules as to who should pay the bills. Sometimes he paid, sometimes she paid. She worked in Sydney and he was self-employed.

19. B told the Tribunal that things changed in 1985 when her husband began to drink quite heavily and also had other health problems requiring hospitalisation in 1985 and 1986. He also saw psychiatrists in 1986 and 1987 for drink and depression. She said she had a fight with her husband and left him for a short period in 1987 because of these problems, but reconciled with him because he straightened himself out and she wanted the relationship to work.

20. Shortly after this they decided to buy the South Coast investment property for $18,000.00, the money being borrowed in her name and the title being in both names. Subsequently they decided to build a home on the land and borrowed $62,000.00 to do this, the loan being in both names. The house was completed in January 1992 and they moved into it in February 1992. B said that most of the household goods moved in were hers, apart from some replacement furniture, and she owned these goods before she met the Applicant.

21. When they moved into the new house B said she and her husband shared a bedroom, although they had not had a sexual relationship for years, and jointly lived in the house. She said that initially she planned to work locally, but this did not eventuate and she continued working at her old place of employment in Sydney, going to Sydney on a Monday and back to the South Coast on Wednesdays. At this time her husband started to drink heavily again and she wanted him to go to Alcoholics Anonymous as she considered him an alcoholic, but he would not go. She said her husband had no incentive to do anything around the house, he was on anti-depressants and was not well, they were having fights and they were not talking. She said that some seven to eight months after moving to the South Coast she indicated to her husband that she thought their relationship was over and he moved into the spare bedroom on his own accord. In September 1992 she moved with all her clothes and a television to a friend's place in Sydney. She kept in touch with her husband and began going down to stay at the house for various periods, generally on the weekend and on average for three days a week. She said she would on her own initiative clean bathrooms, floors, toilets, change bed linen, vacuum and look after the garden when she visited to keep the house well maintained. She said she brought her clothes with her from Sydney and laundered these in Sydney. She said she agreed with her husband that she would contribute her half of the mortgage repayment giving him $80.00 per week for this purpose. The agreement was that he would pay rates and house insurance and she would pay their private health insurance. She said she gave the Applicant no other financial support. She told the Tribunal that they were both getting older and she did not want the house sold as they would only walk away with about $10,000 each and this was not enough for either of them to get a house on their own or for investment. In cross-examination she said that she had taken over paying all the mortgage repayments from June 1998.

22. She said that she thought the Applicant was very bitter about her leaving and blamed her but that he got over this. She said she still likes him but does not love or hate him. She considers the new house to be her home, likes to be there, but would never put the Applicant out. She has a couple of friends locally with whom she socialises, but never accompanied by her husband. When in Sydney she now lives with her son and his wife. Prior to 1992, when married to the Applicant, she had not seen other men, there being no reason to do so. She told the Tribunal that after leaving her husband she had a gentleman friend who she no longer sees and that she had seen other gentlemen as well. In cross-examination she said she was not willing to divulge the names of her friends.

23. She said she received an inheritance of $39,000.00 in 1995 and decided to use a substantial part of this to reduce the mortgage on the house she and her husband owned. This course of action was taken by her alone and was not discussed with the Applicant. She needed something in writing to recognise her contribution to the mortgage and to ensure that her estate did not lose this contribution in the event of her death. Hence she asked her husband to sign the agreement (Exhibit A1). She said that she was not asked by the SSAT about having a will. She said she had a will with her two children as sole beneficiaries and she trusts her husband to honour the agreement if anything should happen to her. In cross-examination she said she did not tell the SSAT or Centrelink that she received $50,000.00 inheritance. She also denied that the agreement was not signed in 1995 and was only brought into existence after the SSAT hearing. She told the Tribunal she found her interaction with the SSAT most unsatisfactory, being allowed only 20 minutes and only afforded an opportunity to answer their questions.

24. She said the first car she and husband owned fell off a hoist while being serviced, she thought in 1996. She mainly drove this car and decided to purchase another car when the first car was written off. The replacement car cost $10,000.00 more than the insurance pay-out on the first car and she was told she could not get finance on her own. She was going to use her own address in Sydney to obtain a loan, but as she had to use her husband's name also thought it better to give the South Coast address. She explained the registration and insurance was simply rolled over, hence the replacement vehicle was registered in the Applicant's name and insurance was in joint names. B said that when she realised the registration was in her husband's name she contacted the Motor Registry and was told change of registration would involve a transfer fee and stamp duty, hence she did nothing. She said that there were two sets of keys to the car, one in her possession and one kept at the place where she stays in Sydney. When asked what were her plans for the future B said she intended at this stage to work for another three years and then possibly move in with her daughter on the North Coast. At that stage she said she hoped she and her husband would own the house and she would wish to sell. In cross-examination she said she was trying to build up her assets and that is why she wanted to keep the house until then. She said she had not discussed these plans with her husband. She said she did not see herself as a married woman but as a carer for the Applicant.

25. Further in cross-examination she said that she occasionally takes her husband shopping as a favour and did not expect any favours in return; that her husband regularly accompanies her when she takes the dog to be clipped or to have her hair done, the shops in question knowing her husband's name and that he sometimes makes the appointments; that she changed the address for her bank account with the Commonwealth Bank from the South Coast address to her Sydney address on 10 July 1997 after she became aware of Centrelink investigations, on the advice of the accountant at her workplace who was responding to queries from Centrelink; that she and her husband still hold membership of a local country club with separate cards; that she only had membership of the local golf club for some three months as she found she could not play because of a problem with her shoulder; that she obtains most of her prescription medicines from a pharmacy in Sydney; that she occasionally attends formal family gatherings such as weddings and christenings with her husband; that she spends Christmas and holidays apart from her husband; that her take home pay was approximately $320.00 per week; that she did not pay rent for accommodation in Sydney; and that she was not providing any financial assistance to her husband.

26. In answer to questions on re-examination B said she uses both the South Coast and Sydney addresses from time to time but also considers her Sydney address as home, where she comes and goes as she pleases; she feels no compulsion to go to the house on the South Coast for her husband's sake, at times not being there for weeks; that her son with whom she stays in Sydney does not mind her seeing other men as he sees her as being separated from her husband who the son blames, saying he has to wear "stuffing up his life"; that she is battling to keep herself on what she earns and does not, nor does she intend to support her husband financially; that she attends the local club with a friend who knows her as separated; and that she considered her husband's alcoholism as the major reason for their separation.

27. The Applicant's local doctor (witness C) told the Tribunal he had been seeing the Applicant regularly since February 1992 and treating him for hypertension, alcoholism, depression and a neurological condition. He said the Applicant suffered from poor memory and loss of attention.

28. C said that the Applicant was never accompanied by his wife on visits to surgery, although the Applicant's wife had attended the surgery on her own on a few occasions between 1992 and 1996. On those occasions when home visits occurred C found the Applicant's wife to be unpleasant to her husband. The doctor expressed the opinion that the Applicant's marriage was on paper only, that they did not live as man and wife as he understood that phrase, namely they did not support each other, did not love each other and did not live together. He considered that emotional support was lacking and that there was only some compassion left. C said the Applicant said that there had never been a sexual relationship with his wife while they were at the South Coast house and the doctor expressed the view that while sex is important it is not the only ingredient.

29. A friend of the Applicant (witness D) told the Tribunal about knowing the Applicant and his wife since they moved to the South Coast. D described them as a very nice couple with a normal married relationship when they first moved in. However, D noticed a marked change in the relationship within the first 12 months with the Applicant and his wife watching the same television program in different rooms, not eating together, occupying separate bedrooms, and having unpleasant altercations when the Applicant was drunk. D said that the Applicant consumed a bottle of gin a day and that the Applicant was often confused and wandering. D told the Tribunal that by the end of 1992 D characterised their relationship as bad and by mid 1993 as intolerable.

30. It was put to D in cross-examination that for personal reasons D would do anything to discredit Centrelink and was not telling the truth. D denied this.

31. A friend of the Applicant (witness E) gave evidence by telephone. E has known the Applicant for 25 years and saw the Applicant and his wife socially approximately once a month in the early days of their marriage and up to 1982. E again began seeing the Applicant and his wife when they moved to the South Coast in 1992. E now sees the Applicant approximately twice a week. He told the Tribunal that the Applicant and his wife initially seemed to be a happily married couple and seemed to be okay when they first moved to the South Coast. E said that 12 to 18 months after arriving on the South Coast the Applicant and his wife seemed to be totally different. He said the marriage was characterised then by short sharp interactions, lack of affection with basic tolerance only being apparent. He told the Tribunal that the Applicant was drinking heavily and this was what destroyed his marriage. E said the Applicant was a cupboard drinker, with a very confused and unclear mind, who was down on himself, kept very much to himself and dwelt too much on his childhood. E said that the Applicant borrowed money from E, the balance owing being $1,000.00. E said there was not much discussion with the Applicant about his wife and any opinions expressed were based on E's observations. It was E's opinion that the Applicant and his wife were separated and that this had been the situation since early 1993.

CONSIDERATION

32. At the outset it is important that the issue of the credit of the Applicant and his wife be addressed. It is the Respondent's submission that the inconsistencies in the oral and written evidence of these two witnesses are so significant as to bring into serious question the credit of the witnesses.

33. The Respondent in final submissions pointed to what were perceived to be the inconsistencies that the Tribunal should consider, namely differences in evidence in relation to fighting and drinking; the relationship between the Applicant and his sons; the various home addresses used by the Applicant's wife; the use of their car; the nature and extent of home duties carried out by the Applicant and his wife; the genesis and detail of the agreement signed by the Applicant in regard to mortgage money paid by the wife; the making and holding of wills; reasons for not seeking a divorce; the provision of financial support to the Applicant by his wife; and the Applicant's ability to remember past events.

34. The inconsistencies raised by the Respondent were canvassed with the witnesses by the Respondent in some detail and with vigour. The Tribunal was impressed with the frank and forthright manner in which the Applicant's wife and witness D gave their oral evidence and responded to cross-examination. The Tribunal found the wife's explanations of inconsistencies in respect to providing and changing her addresses and in respect of who drove the car to be plausible.

35. In regard to the Applicant's memory problems, the Tribunal is satisfied that the Applicant does suffer from alcoholism and a confused memory and in this regard the evidence of the Applicant's doctor and two friends is persuasive. Further to this finding the Tribunal is unable to accept the evidence of the Applicant that he is still receiving $80.00 a week cash from his wife. The uncontroverted evidence of the Applicant's wife was that she currently just manages on her take-home pay of $320.00, meeting from this the total mortgage weekly repayments of approximately $160.00, the private health insurance premium, car expenses and all her normal living expenses. If she was paying the Applicant $80.00 per week she would clearly have insufficient to meet normal weekly living expenses.

36. The Tribunal's finding about the Applicant's alcoholism and confused memory throws some light on why there might be discrepancies in the evidence in regard to the undertaking of household duties, whether or not there were fights associated with the Applicant's drinking, the nature of the relationship between the Applicant and his sons and his recollections of the mortgage money paid by the wife from her inheritance.

37. The Tribunal, after careful consideration of all the material before it and the submissions of the parties, does not accept the submission made by the Respondent in respect of the credit of the Applicant's wife. The Tribunal is satisfied the Applicant's wife was an honest and genuine witness in the face of issues and questions that were both awkward and embarrassing for her. In so far as the Applicant is concerned, as already indicated the Tribunal accepts he is an alcoholic and has a confused memory, and the weight to be given to his evidence about historical matters needs to be considered in this context. Apart from this, the Tribunal found him to be a genuine witness who answered questions to the best of his ability.

38. Turning now to the principal issue to be resolved in this matter, namely whether or not the Applicant is a member of a couple pursuant to s4 of the Act.

39. There is no dispute between the parties that the Applicant is still legally married to B. The Tribunal therefore is required to form an opinion as to whether or not the Applicant is living separately and apart from B on a permanent or indefinite basis. In so doing, the Tribunal is to have regard to all of the circumstances of the relationship including, in particular, the matters stipulated in s4(3) of the Act.

40. In this regard the Tribunal was referred to Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164. In Staunton-Smith (supra) O'Loughlin J said at 175:

" Some assistance can be gained, when considering what amounts to living separately and apart, from a consideration of the provisions of the Family Law Act 1975 (Cth) and the cases decided on the relevant provisions of that legislation. However, care must be exercised in the sense that the Family Court is testing whether a particular marital union has ceased to exist whereas the Department, and later the Tribunal, are looking to see whether a marital or quasi-marital union does, in fact, exist.

The subject of living separately and apart is covered by s 49(2) of the Family Law Act. It provides:

'The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.'

Addressing the subject of "separation" Watson J said in In the Marriage of Todd (No 2) (1976) 25 FCR 260 at 262-263:

'In my view "separation" means more than physical separation - it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention; or, alternatively, act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage - elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.

When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case."

The Full Court of the Family Court (of which Watson J was a member) expressed in In Marriage of Pavey (1976) 25 FLR 450 its general agreement with that statement of the law with two qualifications. It said (at 454) that it was appropriate to use the word 'breakdown' instead of 'destruction' and it considered (at 455) 'the nurture and support of the children of the marriage' as a constituent element of the marital relationship.

The matter of greater significance to be derived from Pavey's case (supra) is the insistence by the Full Court that the composition of the marital relationship for each couple varies from case to case. This accords with the views that this Court and the Tribunal have expressed when considering various provisions of the Social Security Act: in every case it will be necessary to have regard to the particular circumstances of the people whose lives and lifestyles will be affected by the decision of the department; it is wholly inappropriate to fall back on standards, conventions or 'role-models'."

41. The alleged separation of the Applicant and his wife occurred in September 1992 and this date needs to be borne in mind when considering the criteria for forming an opinion about their relationship.

Financial Aspects of the Relationship

42. The Tribunal is satisfied that the property on the South Coast is owned by the Applicant and his wife as joint tenants before and after September 1992. In regard to this property the Tribunal accepts that the Applicant's wife has made a contribution of $33,000.00 to the mortgage and $2,000.00 towards the rate repayments in September 1995, and that in the event of the property being sold an amount of $35,000.00 will be paid to the wife or her estate before division of settlement. The Tribunal is satisfied that this arrangement in itself does not point towards separation. The Tribunal notes that the wife, since June 1998, has been solely responsible for meeting mortgage payments. The Tribunal is also satisfied that the Applicant and his wife jointly own the household contents.

43. There is no dispute between the parties that the Applicant and his wife have not had joint bank accounts before or after September 1992 and the Tribunal so finds.

44. With respect to day-to-day household expenses, it is the Respondent's contention that there was considerable sharing well beyond 1992. The Tribunal is satisfied that the wife continues to meet family Medibank health insurance premiums and that the Applicant benefits from this insurance. The Tribunal notes the wife's evidence on this issue to the effect that she still sees herself as a carer for the Applicant and that maintaining family health insurance is in her best interests. The Tribunal notes that the Applicant has held an additional card to his wife's MasterCard credit card, but is satisfied that the Applicant has not used this card. In regard to car ownership and use, the Respondent submits that it is unable to accept the Applicant's explanation of how the vehicle, supposedly for the sole use of the Applicant's wife, could be registered in the Applicant's name, with comprehensive insurance in both names. The Applicant's wife was questioned extensively about this in her oral evidence and as indicated earlier in these reasons for decision the Tribunal found these reasons to be plausible. The Tribunal notes that since 1997 the car and all associated paper work is held in the wife's name. Based on the material before it, the Tribunal is satisfied that household expenses such as for food and groceries are paid for separately.

Nature of the Household

45. There are no children from the marriage of the Applicant and his wife but each have children, now grown up, from previous marriages. As such there is no joint responsibility for providing care or support for children.

46. The Applicant continues to reside in the house on the South Coast, whilst since September 1992 the Tribunal is satisfied that on average his wife spends half her time in Sydney while working in Sydney, and half her time at the South Coast house. The Tribunal accepts that the wife considers both places of residence as home, but the Applicant does not share a bedroom with her, eat with her, watch television with her and on his own evidence tries to be away as much as possible when she is there. In regard to housework at the South Coast house, as indicated earlier, the Tribunal accepts there is probably confusion and a lack of recognition in the mind of the Applicant about the extent of duties carried out by his wife and the Tribunal also is satisfied that poor communication between the Applicant and his wife would exacerbate this situation. The Tribunal accepts that the versions given by each about the distribution of duties is a fair description of how they see their respective roles, and is satisfied that the Applicant is responsible for his own cooking and cleaning, although his wife does clean the house as well to overcome what she perceives as inadequate maintenance by the Applicant of an asset in which she has an interest.

47. The wife occasionally does the Applicant's washing and sometimes takes him to do shopping. This she sees as a favour, and the Applicant has no expectation of such support or need to repay the favour. In relation to the dog, the Applicant takes care of it during the week and the wife takes it for grooming every three weeks.

48. The Tribunal is satisfied that the evidence before it regarding the nature of the household points strongly towards the Applicant living separately and apart from his wife.

Social Aspects of the Relationship

49. In regard to social aspects, the Tribunal is satisfied that neither the Applicant or the Applicant's wife hold themselves out as a couple; that close friends and relatives accept that they are separated; that they take holidays and celebrate Christmas separately; and that the wife has plans for retirement which do not include the Applicant. The Tribunal notes that the Applicant and his wife have never been a socially active couple, and that since September 1992, apart from meeting obligations to attend the occasional formal family wedding or christening, they do not socialise together at all.

50. The Tribunal is satisfied from the evidence before it regarding social aspects that the Applicant and his wife had virtually no joint social activities other than family commitments they felt obliged to attend, and that they had no plans for future joint social activities together.

Sexual Relationship

51. As to sexual relations, it is common ground that there has not been a sexual relationship between the Applicant and his wife for some time prior to September 1992. The Tribunal accepts the wife's evidence that she has had a relationship with a number of men since September 1992 and that the Applicant is aware of at least one of these relationships.

Nature of the People's Commitment to Each Other

52. With respect to the nature of commitment to each other, the Tribunal notes that the Applicant and his wife have been married for nearly 20 years, and prior to September 1992 had trial separations. They have both told the Tribunal they do not intend to seek a divorce. The Respondent contends that the chosen date of separation in September 1992 coincides with the Applicant ceasing self-employment, and that it is self-serving. The Respondent further contends that the manner in which the wife continues to look after the Applicant's welfare and to make regular contact, points to interdependence and the provision of substantial emotional support. On the other hand, it is contended for the Applicant that while the Applicant expresses hopes for the future, he sees the relationship as over and that his wife, having given the Applicant three chances, also sees the relationship as over and has made plans for the future which do not include the Applicant. The Tribunal notes that the Applicant's doctor considered the commitment between the Applicant and his wife to be formal only, it being a marriage on paper only and lacking in emotional support. On all the material before it the Tribunal accepts the submissions made for the Applicant and finds that the wife is only providing carer type support to the Applicant.

53. The overall assessment of the circumstances in this matter is extremely difficult, particularly where the Applicant's wife dwells under the same roof as the Applicant for part of most weeks. As noted above Re Staunton-Smith (supra) the evidence must satisfy the Tribunal that a couple's lives are led separately and in In the Marriage of Todd (supra) that a marriage-like relationship does not exist.

54. In coming to a decision the Tribunal not only had regard to the above decisions but also to what the Tribunal said Re Holmes and Secretary of Department of Social Security (AAT 4046, 23 December 1987) at paragraph 17, namely:

"The living situations of different people that could constitute separation "under the one roof" are too numerous to detail. At least the evidence must satisfy the decision maker that a couple's lives are led separately, not only in the personal but also in the social and economic sense and that joint activity is not because of the existence of an exclusively binding relationship but for some material advantage. Commonly, in the quite numerous similar cases coming before this Tribunal, the reason for remaining under the one roof is the fact that the property is jointly owned and that division would be economically disastrous."

55. In summary, the Tribunal is satisfied that the weight of evidence points to the Applicant and his wife living separately and apart on a permanent basis when one considers the nature of the household, when one considers the social aspects of the relationship and when one considers the nature of the people's commitment to each other. In so far as any sexual relationship is concerned, the absence of any such relationship at all relevant times affords little help to the Tribunal in its final determination. Some weight can be attributed to the fact that the Applicant's wife did seek relationships with other men outside the marriage after September 1992 and this reinforces the view that the marriage had broken down at this time. Consideration of the financial aspects of the marriage leads to more equivocal outcomes. However, the Tribunal is satisfied that joint ownership of the house and contents on the South Coast, and pooling of financial resources such as has been found by the Tribunal is a result of both the Applicant and his wife attempting to avoid what they see as an economically disastrous outcome if they were to divorce and obtain property settlement. In all the circumstances, and based on all the material before the Tribunal and the submissions made by both parties, the Tribunal is satisfied that the Applicant and his wife have not had a marriage-like relationship for the past seven years. The Tribunal is satisfied that the Applicant and his wife have, since September 1992, lived separately and apart, albeit while living in part under the same roof, and this separation is permanent. The Tribunal therefore is satisfied that the decision under review should be set aside and in substitution it is decided that from September 1992 the Applicant and his wife were not a member of a couple.

56. The Tribunal is mindful that the Applicant received a Social Security payment pursuant to ss 1224(1)(a) of the Act, but is not satisfied pursuant to ss 1224(1)(b)(i) and (ii) that he had made a false statement or failed to comply with a provision of the Act. The Tribunal having found that the Applicant was not a member of a couple during the relevant period therefore finds that the Applicant owes no debt to the Respondent pursuant to s 1224 of the Act.

57. As the Tribunal has found no debt was incurred pursuant to s 1224 of the Act, there is no need for the Tribunal to consider the question whether there are special reasons, pursuant to s 24 of the Act or the question of whether there are special circumstances pursuant to s 1237AAD of the Act.

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way

Signed: .....................................................................................

Associate

Date/s of Hearing 6 December 1999

Date of Decision 14 February 2000

Advocate for Applicant Meena Sripathy

Advocate for the Respondent Cheryl Collis