Kerr; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 1318

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1318

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200600529

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And CHERYL KERR

Respondent

DECISION

Tribunal Mr Egon Fice, Member

Date14 May 2007

PlaceMelbourne

Decision The decision under review is affirmed.

(sgd) Egon Fice

Member

SOCIAL SECURITY – qualification for disability support pension – legally married - member of a couple – marriage-like relationship – living separately and apart under the same roof – decision affirmed

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

Lambe v Director‑General of Social Services (1981) 57 FLR 262

Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546

Lynam v Director-General of Social Security (1983) 1 AAR 197

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

REASONS FOR DECISION

14 May 2007   Mr Egon Fice, Member

1.      A Centrelink officer rejected Ms Cheryl Kerr’s claim for a disability support pension (DSP) on 11 January 2006.  Centrelink is the service delivery agency for the Department of Employment and Workplace Relations.  Ms Kerr was considered to be living as a member of a couple with her husband, Mr Wayne Kerr, and their combined income exceeded the maximum allowable limit for the grant of a DSP.  Ms Kerr sought an internal review of the decision by an authorised review officer (ARO).  The ARO affirmed the decision.

2.      Ms Kerr sought a review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT).  On 19 May 2006 the SSAT set aside the ARO’s decision and remitted the matter to the Chief Executive Officer of Centrelink for reconsideration.  The matter was remitted with a direction that Ms Kerr and Mr Kerr live separately and apart on a permanent basis and that Ms Kerr’s application for the DSP was to be assessed on that basis.  The Secretary to the Department of Employment and Workplace Relations (the Secretary) seeks a review of the SSAT decision.

3.      The only issue which I have to decide is whether Ms Kerr is a member of a couple for the purposes of the Social Security Act 1991 (the Act).

relevant facts

4.      Mr and Ms Kerr were married in 1976 and continue to be married.  They commenced residing at their current address in 1989.

5.      On 14 October 2002 Ms Kerr moved to a separate bedroom in their house and they have not had a sexual relationship since.

6.      Ms Kerr has a history of psychological problems dating back to, at least, 1984.  She has had short term and long term memory difficulties since childhood.  Her treating psychiatrist, Dr S Kwong, reported that Ms Kerr is a person lacking in confidence and has problems in making decisions.  She has treated Ms Kerr for depression and anxiety.

7.      Ms Kerr was diagnosed with breast cancer in 2003.  She is now in remission following medical treatment.  In September 2003 Mr Kerr lodged a claim for carer allowance as he cared for Ms Kerr as she was undergoing medical treatment for breast cancer.

8.      Ms Kerr completed nursing training in 1971, including a midwifery course.  She ceased working as a nurse in 1980 after her first son was born.  Her second son was born in 1983.  After that she did some voluntary work and also worked as a receptionist and in a number of cleaning jobs.  She finally stopped working in November 2002 following an assault on her youngest son and the treatment for breast cancer shortly thereafter.

legislative scheme

9.      Although Ms Kerr otherwise qualified for the DSP following her application in November 2005, she was not entitled to receive the DSP because Centrelink regarded her as a member of a couple and Mr Kerr’s income was in excess of that allowed for the payment of DSP.  In determining whether a social security applicant is a member of a couple, the Secretary relied on the matters set out in s 4(2) and s 4(3) of the Act. The relevant part of s 4(2) provides:

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 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 

(b). . .

10. In forming an opinion as to whether Ms Kerr is living separately and apart from her husband, I am required to apply ss 4(3) and 4(3A) of the Act which provide:

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 the 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. 

4(3A)The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.

11.     The role of the Tribunal in determining whether a person is a member of a couple in Ms Kerr’s circumstances is clear. It must determine whether Ms Kerr and her husband are living separately and apart on a permanent or indefinite basis. In order to make that determination, it must consider all of the circumstances of the relationship, including those matters set out under s 4(3) of the Act. Furthermore, as O’Loughlin J said in Staunton‑Smith v Secretary, Department of Social Security (1991) 32 FCR 164, at 170:

It is not suggested that this list is exhaustive nor will each of these subjects fall to be considered in every case.  It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution.  The responsibility of the fact-finding Tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators.  The Tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.

12.     More recently, French J in Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 had reason to deal with ss 4(2) and 4(3) of the Act in the context of an application for a carer payment. He referred to the decision in Staunton‑Smith and also to the decision of Fitzgerald J in Lynam v Director‑General of Social Security (1983) 1 AAR 197. He stated that in determining whether a marriage‑like relationship exists under the Act, the nature of the exercise is much the same as that required under the statutory formula used in Lynam, Staunton‑Smith and in Lambe v Director‑General of Social Services (1981) 57 FLR 262. In Lynam, Fitzgerald J said, at 200:

Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other.  What must be looked at is the composite picture.  Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error.  The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration.  In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.

13.     French J also cited with approval the following statement made by O’Loughlin J in Staunton‑Smith, at 173:

. . . it is not sufficient to merely note that a couple are sharing accommodation, nor is it sufficient to note that one is financially dependent on the other; it is necessary to delve deeper to find the reasons for those arrangements. Those reasons will be better indicators in determining the correct nature of their relationship.

14.     In accordance with what French J said in Pelka, I propose to consider all of the factors set out in s 4(3) of the Act in order to determine whether Ms Kerr and her husband are living separately and apart on a permanent or indefinite basis. I acknowledge that those factors are non-exhaustive and have considered the existence of any other factors relevant to my determination. I should add that Ms Kerr was not present when Mr Kerr gave evidence before me; nor was Mr Kerr present in the hearing room when Ms Kerr gave her evidence.

financial aspects of the relationship

15.     Ms Kerr and her husband are the joint proprietors of the home which they currently share.  That home was purchased in 1988.  There is a joint mortgage on the property with mortgage repayments of $400 per month being made to the Commonwealth Bank of Australia (the Commonwealth Bank).  When Ms Kerr was working, she contributed to mortgage repayments.  However, she has not done so since she ceased working.  Ms Kerr and her husband have one joint bank account which is in fact the loan account and it contains a debit balance.  Mr Kerr indicated that he transfers the sum of $300 monthly to that account to cover the interest on the balance owing.

16.     Ms Kerr and her husband own motor vehicles.  They are not jointly owned.  Ms Kerr owns a 1998 Ford Fairlane for which she still owes some $7000.  There was no evidence that Mr Kerr has contributed any monies to the purchase of that vehicle.

17.     At the time of making her third application for the DSP in 2005, there was only one joint bank account which had a debit balance of approximately $7000.  There had been another joint bank account with a balance of $595 credit but that account was closed on 30 November 2005.  Mr Kerr had a cheque account with a balance of approximately $6500 credit and also a National Australia Bank internet account with a balance of $100 credit.  The jointly owned account is a Veridian line of credit account with the Commonwealth Bank and it is used primarily to service mortgage repayments.  Mr Kerr transfers money from his account to the line of credit account on a regular basis to meet those payments.

18.     Mr Kerr said in evidence that when Ms Kerr was working and earning a salary, he did not see a cent of it.  He said that his wife spent the money as she saw fit and he met all of the household expenses as well as the mortgage repayments.  Since 2003, because Ms Kerr has had no income whatsoever, she has been financially dependent on Mr Kerr.  Mr Kerr also said in evidence that Ms Kerr did receive some money from her mother to assist with spending on personal items.  Ms Kerr said that there was only one joint account at present and that was used to make payments on the mortgage.  It seems to me reasonable to conclude that, certainly since 2003, there has been no pooling of financial resources.  In fact, given that Mr Kerr said that he has never seen any of Ms Kerr’s earnings when she was working, it is quite possible that there has been no pooling of financial resources for a considerable period before 2003.  Ms Kerr did say that when she had an income, she did not hand it over to Mr Kerr but that she did use it to buy food and petrol and to pay the children’s medical bills.

19.     There was no evidence of any legal obligations owed by one person in respect of another person.

20.     As I have mentioned above, Mr Kerr has met the day-to-day household expenses since 2003.  Prior to that, it appears that Ms Kerr may have paid some of those expenses from her own monies.

21.     Given the above financial circumstances of Ms Kerr, Ms J Macdonnell, who appeared for the Secretary, submitted that the financial aspects of the relationship between Ms Kerr and Mr Kerr were suggestive of them being members of a couple.  While superficially the financial aspects of Ms and Mr Kerr’s relationship may point towards Ms Kerr being a member of a couple, the position is, in reality, not quite so simple.  Joint ownership of the house in which they reside is a necessity given that, as Mr Kerr explained, if the house were to be sold and the net proceeds divided between Mr Kerr and Ms Kerr, there would not be sufficient for either of them to purchase satisfactory accommodation.  According to Mr Kerr, sale of the property in which they now reside would probably fetch somewhere around $350,000.  He did not know exactly what the figure would be, but he thought that the median price for that type of house in their location was approximately $300,000.  In fact, this was one reason why Mr Kerr said that he had not insisted on the sale of the property; he was not prepared to leave Ms Kerr without a roof over her head.  There was also the additional issue of Mr and Ms Kerr’s son, who received serious brain injuries in 2002, continuing to live in the house.  Therefore, while in an ordinary situation, the fact that two people own real estate jointly might point strongly to the fact that they are a couple, in the circumstances that Ms Kerr finds herself, the inference is nowhere near as strong. 

22.     Similarly, the fact that Mr Kerr pays for food and other living expenses including Ms Kerr’s car registration, simply indicates that Ms Kerr is financially dependent on him in her present circumstances.  In my view, it does not point strongly to their relationship as a couple.  The reason is that without an independent source of income, Ms Kerr will necessarily be financially dependent on either some other person or on social security. 

23.     Although Mr and Ms Kerr currently have one joint bank account, there was no evidence that this account is used for anything other than to make mortgage repayments.  Again, by itself, it is not strongly indicative of the fact that Ms Kerr and Mr Kerr are members of a couple. 

24.     Overall, given the level of Ms Kerr’s financial dependency on Mr Kerr in her particular circumstances, it is difficult to conclude that the financial aspects of their relationship are strongly indicative either of their being a couple or of their not being a couple.  The highest it could be put is that Ms Kerr’s financial arrangements are the consequence of necessity rather than being indicative of her being a member of a couple.

nature of the household

25.     Although Ms Kerr and Mr Kerr have lived together for approximately 30 years, as Ms Kerr explained, in October 2002 she moved into her own bedroom.  She has her own bathroom.  The kitchen and living areas of the house are shared.

26.     In 2003, when Ms Kerr was diagnosed with breast cancer and underwent extensive treatment for that disease, Mr Kerr said that he was doing all of the housework, shopping and preparing meals.  He also drove Ms Kerr to her medical appointments and was substantially involved in the care of their younger son.  Mr Kerr made a claim for carer allowance in September 2003 and again in December 2004.  In addition to her breast cancer, Ms Kerr continued to suffer from anxiety and depression.  Mr Kerr said that after Ms Kerr had completed her chemotherapy and radiotherapy treatment for breast cancer, he continued to do most of the laundry.  Mr Kerr said that he did some cooking and that his son also likes to cook.  Mr Kerr explained that prior to Ms Kerr contracting breast cancer, because she suffered severely from depression, she would do nothing around the house but simply lay in bed.  That is the reason why he assumed the role of house cleaner.

27.     Ms Kerr said in evidence that she did not eat her meals together with Mr Kerr.  She said that she was rarely in the same room as Mr Kerr and she would often go downstairs to view television rather than view the television in the living room with Mr Kerr and her son.  According to Ms Kerr, after they were married they both did the shopping and she prepared the meals and did the laundry.  She said that she was principally responsible for cleaning the house, although Mr Kerr did some cleaning.  They were both involved in maintaining the garden.  Ms Kerr said that by 1995 she and her husband were having relationship problems and that her husband accused her of neglecting the family.  At that time she was involved in a computer course in an attempt to improve her skills in that area.  She admits to having neglected her husband but not her children.  

28.     Ms Kerr said that in the late 1990s she also suffered from memory problems and had to write things down.  She began spending more time in bed and Mr Kerr became responsible for household chores.  Although she was having difficulty with her relationship with Mr Kerr in 2002, when her youngest son nearly lost his life, she said she put her anger aside to look after him.  She then obtained a carer payment while nursing her son back to health.  Ms Kerr confirmed that after she was diagnosed with breast cancer and undergoing chemotherapy and radiotherapy, Mr Kerr did most of the household chores.  Ms Kerr also said that her meals, which she was having at home after 2003, were not prepared by Mr Kerr but that she received some assistance from her mother.

29.     Ms L Severs, who was a neighbour of the Kerrs until January 2006, also gave evidence and provided what she claimed to be a sworn statement.  Ms Macdonnell made an issue about whether that was, in fact, a sworn statement because Ms Severs did not make an oath and her signature was witnessed by a chemist.  I do not consider that to be significant.  As Ms Severs said, she is not a lawyer and she simply did as she was asked to do.  Ms Severs said that she visited Ms Kerr at home at least twice a week.  She said that on many occasions when she visited Ms Kerr, Mr Kerr was not present.  When he was, if he made a cup of coffee, he never offered to make one either for her or Ms Kerr.  She occasionally had lunch with Ms Kerr at home when Mr Kerr was present but she noted that Ms Kerr would not make lunch for him.  She said that for the first three months of her friendship with Ms Kerr, she assumed that she and Mr Kerr were brother and sister.

30.     On the evidence before me, it appears that the nature of the household, including Ms and Mr Kerr’s living arrangements and the basis on which responsibility for household work is distributed, suggests that they are not members of a couple.

social aspects of the relationship

31.     Ms Macdonnell submitted that the evidence clearly disclosed that Ms Kerr and her husband held themselves out as married to each other.  She pointed to the number of applications made by both Ms Kerr and her husband for DSP, sickness benefit and carer allowance between 2002 and 2005.  In her carer allowance application made in December 2002, Ms Kerr, in answer to a question whether she currently had a partner, although she initially ticked the no box, she corrected this to indicate an affirmative answer.  In answer to a question regarding her current marital situation, she ticked the box indicating she was married.  There was provision on that form to indicate that she was separated, but she did not tick that box or give any details of the separation as required by the form.

32.     In an application for DSP made in September 2003, Ms Kerr again indicated that her partner was Mr Kerr and that she was married.  She did not indicate separation as provided for on that application form.  In the partner details section of that application form, Mr Kerr also stated that he was married.  He did not complete separation details on that form either.

33.     Mr Kerr lodged an application for carer allowance in September 2003 when Ms Kerr was undergoing therapy for her breast cancer.  On that application form, Mr Kerr noted that he was married.  However, he also ticked the no boxes where he was required to indicate whether there was any chance of reconciliation and whether he wished to discuss the separation with a social worker.

34.     In December 2004 Mr Kerr lodged an application for sickness allowance.  On that form Mr Kerr ticked the box which indicated that he was married and currently living together.  Mr Kerr did not complete the provision for indicating separation.  He indicated that his partner’s name was Ms Kerr.

35.     In December 2004 Ms Kerr applied for the DSP again.  On that application form she ticked the box indicating she was married and living together with her partner.  She did not complete the section of the form dealing with separated couples.  She indicated that her DSP payments were to be paid into an account in the name of Mr Kerr.

36.     In December 2004 Mr Kerr again applied for the carer allowance indicating that his current partner was Ms Kerr.  Mr Kerr ticked the box indicating that he was married but did not indicate that he was separated.

37.     Ms Kerr made a further application for DSP in November 2005.  On that application, Ms Kerr ticked the box indicating that she had a partner but was unable to live with the partner due to the partner’s illness.  That of course seems to be in error because it was her illness which she claimed was the cause of her being unable to live with her partner.  She also ticked the separated box, indicating that the name of her former partner was Mr Kerr.  On that application form Ms Kerr provided the account details of a bank account in her name.  Ms Kerr also completed a form headed Assessment of Living Arrangements – Separated Under One Roof.

38.     Mr Kerr said that he generally assisted Ms Kerr in completing Centrelink forms.  In fact the handwriting on the forms generally is his.  He completed most of the forms and Ms Kerr simply checked those and signed them where required.  Mr Kerr said he ticked the married box because he understood that he in fact remained married at the time the applications were lodged.  When asked whether he regarded himself as separated he said that in one sense, yes, but in another, no.  He also pointed out that there was nothing which permitted him to make any other entries regarding his marital status on any of the application forms.  However, on his carer allowance application, made in September 2003, Mr Kerr in fact ticked the box indicating that there was no chance of any reconciliation although he did not also tick the separated box.  According to Mr Kerr, there was some confusion about his status as married and whether or not he was separated but he did not consider himself separated for the reason that he remained legally married to Ms Kerr. 

39.     Similarly, Mr Kerr indicated that he completed Ms Kerr’s DSP application lodged in December 2004.  Again, he ticked the box indicating married and currently living together.  Mr Kerr said that he understood that he was legally married and that he was living together with his partner.  However, he did not see them as being reconciled or members of a couple.  When he was directed to his carer application made in December 2004, Mr Kerr said that he again ticked the box indicating his current marital situation was married but it was an oversight on his part.  He also suggested that he simply did not have the education to properly understand the form.  Mr Kerr was taken to Ms Kerr’s 2005 application for the DSP where, although he did not tick the box indicating that he was married and currently living together, he nevertheless set down the date of the marriage.  He did indicate that he had a partner but was not able to live together with her.  Because Mr Kerr ticked the reason as partner’s illness, it is quite clear that Mr Kerr misunderstood the question, as it was a form which was intended to have been completed by Ms Kerr.  She of course would have ticked the box indicating your illness.  Mr Kerr indicated that he thought that the question was misleading and quite clearly did not understand it.

40.     Ms Kerr said that she completed the application form for carer allowance which was lodged in December 2002.  She said that she ticked the box indicating she was married at that time because that was the correct answer.  It is of some significance that when asked whether she currently had a partner, Ms Kerr first ticked the box indicating no but then crossed that out.  Similarly, when asked whether she authorised Centrelink to disclose information about her claim, payments or her income and assets to her partner, she ticked the no box.  There was medical evidence indicating that Ms Kerr suffered some cognitive impairment and that she had memory problems.

41.     Ms Kerr was also taken to the applications made by Mr Kerr for carer allowance in December 2004.  She agreed that she was not living apart from Mr Kerr at that time and that she was married.  Dr Kwong, Ms Kerr’s treating psychiatrist who has been treating her since 1984, said that Ms Kerr believed that since her childhood, she was always vague, easily confused and had a poor memory.  It seemed to me that Ms Kerr attempted to give a very straight forward account of her relationship with Mr Kerr, particularly since 2003.  Ms Kerr certainly attempted to answer the questions on the various application forms in an honest way.  Even at the time of the hearing, she considered herself to be married to Mr Kerr.  She said that was the legal position.  That of course is correct; although for the purposes of the Act, that does not necessarily mean that she is in a marriage-like relationship.

42.     Other than the somewhat confused responses to questions regarding their relationship, there was no other evidence that Ms Kerr and Mr Kerr held themselves out as married to each other.

43.     I have already briefly mentioned the evidence of Ms Severs.  She lived across the road from the Kerrs for approximately two and a half years and visited Ms Kerr at least twice a week.  Her evidence was that it was not until after some three months of her friendship with Ms Kerr that she became aware that they were not sister and brother.  Ms Kerr then told Ms Severs that she was married to Mr Kerr but had been separated for some time although they were not divorced.  Ms Severs also said that when she and Ms Kerr went on outings, it was never suggested that Mr Kerr should accompany them.  Ms Severs invited Ms Kerr to her home for a barbeque on a number of occasions, but it never occurred to her to invite Mr Kerr.  Ms Severs was clearly of the opinion that Ms Kerr and Mr Kerr were not a couple.

44.     Both Ms Kerr and Mr Kerr’s evidence was that they have not engaged in joint social activities for a very long time.  Mr Kerr indicated that in the early 1990s he was involved with the local football club and that both of his boys were playing football.  He said that Ms Kerr would attend the football club when the boys were playing.  However, Ms Kerr gradually withdrew from contact with people including relatives, and old friends no longer visited.  They were both involved in water-skiing but that stopped many years ago.  In fact Ms Kerr attempted to take up water skiing again in about 1996, but said that she had forgotten how to do it.  Mr Kerr said that she was simply lazy.  Ms Kerr and her husband do not share holidays.  Mr Kerr remains involved in the football club.  In April 2004 he did take Ms Kerr with him to a fundraising lunch, and paid for her lunch.  There has been no other social outing for some years. 

45.     Mr Kerr was asked about a trip that he made to the Gold Coast where the booking was also made for Ms Kerr.  Mr Kerr said that the booking was in her name but she most certainly did not go to the Gold Coast.  Ms Kerr confirmed that to be the case.  In January 2007 Mr Kerr went to New South Wales to visit his eldest son.  Ms Kerr did not go with him.  Approximately 18 months ago Mr Kerr went to Cairns with a friend and his sister and brother-in-law.  Ms Kerr did not go on that trip.  Mr Kerr also said that he had a relationship with another woman but they were more friends than anything else.

sexual relationship

46.     Ms Kerr and Mr Kerr have not had a sexual relationship since 2002, when she moved into her own bedroom.

nature of commitment to each other

47.     Although Ms Kerr has been married to Mr Kerr for some 30 years, there are recorded marital problems since the early 1990s.  These problems are recorded in the progress notes from the Ascot Vale Health Group where she regularly received medical attention.  In March 1991 and again in March 1992 the progress notes record marital problems with Mr Kerr, with the suggestion that they seek marriage guidance.  In November 2002 the progress notes prepared by Ms Kerr’s general practitioner, Dr J McCorkell, indicate a serious escalation of her marital problems.  Ms Kerr saw Dr McCorkell in December 2002 and he recorded that Mr Kerr was making sexual demands of her and she had not had sex with him for more than six months at that time.  Dr McCorkell recorded that Ms Kerr wanted to leave Mr Kerr, but did not feel able to survive emotionally or financially.  In January 2003 Dr McCorkell recorded that Mr Kerr was requesting that Ms Kerr leave the house, he continued to demand sex of her and he was domineering. 

48.     In April 2003 Dr J Frost noted that Ms Kerr was stressed to the max.  He also noted that Ms Kerr had advised her husband to see a sex worker.  Dr Frost reported that Ms Kerr suffered mental, verbal and physical abuse at home. 

49.     According to the medical records, following Ms Kerr’s treatment for breast cancer, her relationship with Mr Kerr seemed to deteriorate even further.  Rather than there being emotional support, Ms Kerr apparently suffered more significantly from depression and she had numerous consultations with Dr Kwong. 

50.     In her discussions with Dr McCorkell in August 2004, she again told him she was considering leaving Mr Kerr and moving out.  Dr McCorkell also noted in October 2004 that there was ongoing marital disharmony, verbal abuse, yelling and denigration.  She was being verbally abused by her son as well as her husband.  Dr McCorkell recorded that in March 2005 she was upset and crying after an altercation with Mr Kerr.  He had struck her with a bread stick after shopping and there was constant verbal abuse with Mr Kerr calling her stupid and incompetent.  He noted that she (Ms Kerr) feels she must leave the relationship.  Dr McCorkell noted that in April 2005, Ms Kerr had seen a solicitor regarding being separated under the same roof.

51.     Dr Kwong noted that Ms Kerr is a woman lacking in confidence and self‑esteem.  She noted that Ms Kerr was suffering from some guilt because she was of the view that she should marry for life.  That is also the evidence which Ms Kerr gave at the hearing.  Dr Kwong also noted that there was continuing denigration by Mr Kerr and she was able to detach emotionally from him.  Dr Kwong also noted that Ms Kerr was making small steps to move away from home but that her problem in doing so was simply financial.  Without any form of independent financial support, quite clearly Ms Kerr was limited in the choices that she had regarding her relationship with Mr Kerr.  Dr McCorkell noted that she was dependent on Mr Kerr financially but that the downside of her remaining in that relationship was a lack of emotional support.

52.     Although Mr Kerr agreed that he did care for Ms Kerr’s physical needs as a consequence of her various medical conditions and that he had received carer allowance to assist him financially in covering the costs of her medication, it was clear from Mr Kerr’s evidence that he offered no emotional support or companionship.  In fact, he said that he cared for Ms Kerr simply out of humanity.  He has accompanied Ms Kerr on appointments with various medical practitioners, including Dr Kwong.  However, Mr Kerr said he did that simply because he was driving her to her appointments.  He did wish to speak with Dr Kwong on the one occasion that he attended her rooms, as he wanted Dr Kwong to hear his views.  However, he said that he did not get the opportunity to express his views as Dr Kwong spoke for the entire session. 

53.     Mr Kerr also said that Ms Kerr wanted to move out of the house but that the only realistic option was that she moved in with her mother.  He said that she did not get on with her mother and therefore it was unlikely that she would stay there.  Mr Kerr said that the current living arrangements would not continue indefinitely and that he believed that the house would have to be sold.  He said that he would eventually get a divorce and he wanted to move to Queensland.  However, he would not leave Ms Kerr homeless.  Mr Kerr said that it was possible that Ms Kerr could go and live with her mother but that she could not stay with her sister who lives on Norfolk Island.  Mr Kerr was certain that their relationship was beyond reconciliation.

54.     It is quite clear from Ms Kerr’s evidence that there is no emotional support or companionship from Mr Kerr.  In fact, she has had relationship problems with him for many years culminating in her moving to her own bedroom in 2002.  Ms Kerr also said that she planned to leave Mr Kerr in April 2005 and that she was referred to a solicitor regarding a separation.  She said she did not proceed because she could not afford it.  She indicated that the position might be different if her son were no longer living at the house.  Ms Kerr also said that she was feeling much better and more confident in herself now that she and Mr Kerr were living apart, albeit in the same house.  She was much happier when he was away.  She is certain that the house will be sold eventually and she accepts that.  She quite plainly sees her relationship with Mr Kerr coming to a conclusion and she does not consider that she is in a marriage‑like relationship at the moment.  That is the same as Mr Kerr’s opinion of their current relationship.

conclusion

55.     Taken in isolation, some of the factors above do point to Ms Kerr and Mr Kerr being a couple, while other factors clearly point to them living separately and apart but under the same roof.  However, in my opinion, those factors which point to Ms Kerr and Mr Kerr being members of a couple are all residual matters to which they have not attended following the breakdown of their relationship.  For example, the financial arrangements where there were joint bank accounts, arose out of their marriage.  One of those joint accounts has since been closed and the remaining joint account is there simply to repay the mortgage.  Both Ms Kerr and Mr Kerr remain the registered joint proprietors of their house and they have joint responsibilities under the mortgage.  There does not appear to have been any pooling of financial resources and, at least since 2003, Ms Kerr has had no source of income at all.  She is wholly dependent on Mr Kerr financially.  That has created a serious dilemma for her, given that she quite clearly wishes to end the relationship.  As Dr Kwong opined, but for the fact that she does not have the financial means to live on her own, she would have proceeded with the formal separation and possibly divorce some time ago.  I have no doubt that Dr Kwong is correct.

56.     Ms Kerr’s current living arrangements with Mr Kerr exist out of necessity.  She is not particularly well, either physically or mentally, and this determines the nature of their household.  The mental and physical limitations result in her having difficulty in participating in household chores.  It also creates relationship problems with Mr Kerr and her son.

57.     Ms Kerr and her husband ceased socialising together and they do not hold themselves out as married to each other.  There are no joint plans or joint social activities.

58.     There is no sexual relationship between Ms Kerr and Mr Kerr.  The medical reports to which I have referred make it clear that there has been no sexual relationship since at least about 2001.

59.     Although Mr Kerr has assisted Ms Kerr, particularly following her recovery from breast cancer, as he said, that assistance was on humanitarian grounds.  I accept his explanation as it is quite clear to me from the evidence that there is no companionship between Ms Kerr and Mr Kerr.  In fact, it seems to me that companionship and emotional support ceased possibly even before Ms Kerr moved to her own bedroom.  I am satisfied that given the financial opportunity, Ms Kerr will formally separate from Mr Kerr and that the house in which they live will be sold.  This is particularly likely if Ms Kerr is able to get the DSP and attain some degree of financial independence.  It is her lack of financial capacity which compels her to live under the same roof as Mr Kerr.  But for that, this relationship would have ended many years ago.  They clearly do not see their relationship as marriage‑like.

60.     After considering all of the evidence before me, I am firmly of the view that Ms Kerr and Mr Kerr live separately and apart on a permanent or indefinite basis.  They are not in a marriage‑like relationship, even though they continue to live under the same roof.  Therefore, the decision of the SSAT made on 19 May 2006 is correct and should be affirmed.

I certify that the sixty [60] preceding paragraphs are a true copy of the reasons for the decision herein of:

Egon Fice, Member

Signed: Ursula Noyé

Clerk

Dates of Hearing  2 and 3 April 2007
Date of Decision  14 May 2007
Solicitor for the Applicant             Mr M O’Brien
Counsel for the Respondent        Ms J Macdonnell
Solicitor for the Respondent        Australian Government Solicitor