Re SRWW and Secretary, Department of Family and Community Services - [2001] AATA 495

DECISION AND REASONS FOR DECISION [2001] AATA 495

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1443

GENERAL ADMINISTRATIVE DIVISION       )
           Re      "SRWW"
  Applicant
           And    Secretary, Department of Family and Community Services
  Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date6 June 2001
PlaceSydney

Decision      The decision under review is affirmed.
  ...............…[sgnd]................
  Ms SM Bullock
  Senior Member
Catchwords
SOCIAL SECURITY ––Age Pension Single Rate - Member of a Couple
Legislation
Social Security Act 1991 (Cth) ss 4, 24, 1064

Authorities
Re Tang and Director-General of Social Services (1981) 3 ALN N83
Re Holmes and Secretary, Department of Social Security (1987) AAT, 4046, 23 December 1987
Re Hucker and Secretary, Department of Social Security (1992) 26 ALD 226
Re SRLL and Secretary, Department of Family and Community Services [2000] AATA 97
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
In the Marriage of Todd (No.2) 1976 9 ALR 401
Re Secretary, Department of Social Security and Le-Huray (1995) 36 ALD 682
Secretary, Department of Social Security v Le-Huray (1996) 138 ALR 533

REASONS FOR DECISION

Ms SM Bullock, Senior Member

6 June 2001

The Applicant, "SRWW", seeks review of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 31 July 2000 (T2), which affirmed that "SRWW" is a member of a couple and accordingly, is not eligible for the single (not member of a couple) rate of Age Pension. The SSAT decision was a review of the determination made by a delegate of the Secretary, Department of Family and Community Services ("the Department") on 16 March 2000 to not pay Age Pension to the Applicant at the single rate of pension. The determination of the delegate was affirmed by an Authorised Review Officer ("ARO") on 11 May 2000.
At the hearing before the Administrative Appeals Tribunal ("the Tribunal") held on 24 April 2001, the Applicant "SRWW" represented himself. The Respondent, the Secretary, Department of Family and Community Services ("the Department") was represented by Ms Susan Fahey, Departmental Advocate. The Applicant's wife, "SRXX", also attended the hearing and provided oral evidence. The Applicant's daughter gave oral evidence by conference telephone. The Tribunal was assisted by an interpreter in the Italian language.
The Tribunal notes that on 3 November 2000 a direction was issued, pursuant to subsection 35(2) of the Administrative Appeals Tribunal Act 1975, that until further direction, any hearing of this matter would take place in private. The Tribunal further directed that the Applicant is to be known by the identifier "SRWW" and his wife by the identifier "SRXX".
The Tribunal further notes that this application was heard in conjunction with matter N2000/1444, "SRXX" and Secretary, Department of Family and Community Services".
The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) ("T Documents" T1 – T22) in addition to the following exhibits:
Exhibit          Description Date
T1-T22           T documents Various
R1      Respondent's Statement of Facts and Contentions in "SRXX"          18 April 2001
R2      Respondent's Statement of Facts and Contentions in "SRWW"        18 April 2001
R3      An Article 17 Notice referring to the Italian Pension of "SRWW"       23 April 2001

Issues

The issues to be determined in this matter are:

Whether or not "SRWW" is a "member of a couple" for the purposes of the Act; and if so,
Whether or not "SRWW" is eligible for payment of the Age Pension at the single rate.

Legislation

A decision in this matter requires consideration of the provisions of the SocialSecurity Act 1991 (Cth) ("the Act").
Section 4(2) of the Act defines a "member of a couple" as follows:
"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) all of the following conditions are met:
(i)the person has a relationship with a person of the opposite sex (in this paragraph called the partner);
(ii) the person is not legally married to the partner;
(iii) 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;
(iv)both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v)the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.
Note: a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 is a relationship between a person and:
an ancestor of the person; or
a descendant of the person; or
a brother or sister of the person (whether of the whole blood or the part-blood)."
In determining whether a person is to be regarded as a member of a couple, the Tribunal must consider the criteria as listed in section 4(3) of the Act, as follows:
"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.
…"
Subsection 24(1) of the Act deals with circumstances in which the Secretary may treat a legally married person living with a partner as not being a member of a couple for a special reason. Subsection 24(2) of the Act provides that the Secretary may treat a person having a relationship with another person of the opposite sex in a marriage-like relationship as not being a member of a couple.
Section 1064 of the Act deals with the calculation of the rate of Age, Disability Support and Wife Pensions and in particular, subsection 1064(4) notes that:
"1064(4) If:
(a) a person has a relationship with a person of the opposite sex (other person); and
(b) the relationship between them is a marriage-like relationship in the Secretary's opinion (formed after the Secretary has had regard to all the circumstances of the relationship, including, in particular, the matters referred to in paragraphs 4(3)(a) to (e) and subsection 4(3A));
…
the person's pension rate is not to exceed the rate at which it would be payable to the person if the other person were the person's partner.
Note: this provision has the effect of taking into account the ordinary income, maintenance income and assets of the partner in applying the ordinary income test, maintenance income test and assets test respectively.
…"

Background

The following information is provided by way of background and the facts contained within are not in dispute.

"SRWW" was born on 8 June 1927 in Italy. Presently he is 73 years old. He married in Italy on 18 November 1951 (T4).
"SRWW" arrived in Australia on or about 30 August 1955. He has three children, all presently living in Australia.
On 21 February 1986, "SRWW" lodged a claim for Invalid Pension with the Department. He indicated on the claim form that he was married and that his wife's postal address was the same as his (T3).
In a letter dated 2 October 1986, "SRWW" received notice of the decision by a delegate of the Respondent to grant him an Invalid Pension, commencing 6 March 1986 (T6).
On 15 May 1990, during a pre-departure interview of "SRWW" and his wife regarding the Applicant's proposed holiday to Italy, the Applicant's wife indicated that she wanted to separate from her husband and that she would move out of the marital home on his return (T10). The Applicant was adamant that this would not happen. During this interview the Applicant and his wife signed a joint statement that they had sold their Gladesville property to their daughter in about 1978. They also declared that a Lane Cove property had been sold to their son in about 1984, in exchange for his paying off the mortgage and for money owed to him (T11).
On 1 November 1991, the Respondent's International Operations Branch received notification from INPS in Italy that an Age Pension had been granted to the Applicant. This pension included a spouse allowance (T12). For the 1991 calendar year, the Applicant received a total foreign pension of 3666650 lire, of which 1080000 lire constituted the spouse allowance
On 1 March 2000, "SRWW" lodged an "Assessment of Living Arrangements – Separated under one roof" form with the Department, noting amongst other things that the separation from his wife occurred 15 years ago; he exclusively occupied his bedroom; he operated separate financial accounts; he no longer had a sexual relationship with his wife and he did not share any social, leisure or holidays with her (T18).
However, "SRWW" also noted that he shared the living areas and utilities of the marital home with his wife and that this was likely to continue indefinitely. The Applicant also noted that while he and his wife contributed equally to the payment of electricity, gas and telephone bills, he also gave his wife $50.00 per week for food and housekeeping items. In addition, the Applicant's wife was the nominated beneficiary of his will.
Although the Applicant stated in the form (supra) that since separation he had not told any of his community or relatives, apart from his daughter, that he was separated, he noted that he did have relatives, friends or regular associates who did not believe that he was separated because it was "embarrassing" and "Not done in our community." (T18). Further, the Applicant had not filed for dissolution of marriage because he believed that "at our age, it's not important". He also stated that in the case of illness, his wife "would stick by me"; in a personal crisis "she and the kids would be there"; in regard to money matters "she would help out" and in family disputes "the children would sort it out." In the Applicant's opinion, his relationship with his wife was different from that of a married couple in that "we are more like bother and sister."
Following interviews with the Applicant and his wife on 1 and 8 March 2000 and 22 and 24 February 2000 respectively, a delegate of the Respondent reviewed a "Member of a couple assessment" (T19) and on 16 March 2000 determined that the Applicant and his wife were not separated. The delegate stated that the parties "still care for each other, [have] joint accounts [and] others (outsiders) still treated them as a married couple. [They were] only sleeping in separate bedrooms and husband said it is due to his snore. [They] said they separated 15 years ago (ie. 1985), but claimed DSP in 1986 as a married couple. " (T19 p70)
On 11 May 2000, an ARO affirmed the decision to not pay "SRWW" the Age Pension as a single person (T20).
The Applicant then exercised his right to have his matter reviewed by the SSAT. On 31 July 2000, at a hearing to which the wife of the Applicant was joined as a party, the SSAT decided to affirm the original decision. It found that on the totality of the evidence, the Applicant and his wife are members of a couple and accordingly, are each not eligible for the single (not a couple) rate of pension. In particular, the SSAT found that
"…there is an ongoing emotional element in their relationship that indicates that they are members of a couple rather than indicating a relationship of two persons permanently separated but living under the same roof. In this regard, the tribunal notes the evidence of continuing consultation between [the Applicant and his wife] on a range of matters, her ongoing concern about his health and her day to day assistance in both domestic and health matters and their mutual concern about each other's daily activities, not withstanding their respective assertions that each leads a separate life." (T2 p12)
In addition, the SSAT found that "there is no evidence other than that their relationship is likely to continue indefinitely."
In reaching its decision, the SSAT also considered cases such as Re Tang and Director of Social Services (1981) 3 ALN N83 and Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164. In regard to the subject of "separation", the SSAT followed the Federal Court in Staunton-Smith's case, where it referred to the dicta by Watson J In the Marriage of Todd (No2) (1976) 9 ALR 401 that:
"… "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 had 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."
The SSAT concluded that:
"…Although there is consistent evidence that the sexual relationship between the applicants ceased in about 1985, the tribunal is also satisfied that the behaviour of the applicants to each other demonstrates an ongoing marriage-like relationship. The tribunal notes in addition that there is no consistent line of judicial authority whereby the absence of a sexual relationship would indicate the end of a marital relationship." (T2 p15)

Evidence and Submission of "SRWW"

"SRWW" stated to the Tribunal that it was many years since he and his wife had separated, but he could not remember when the separation had begun. The Tribunal, in trying to establish a date of separation for "SRWW," referred him to his claim for Invalid Pension (T3 p19), where on 23 January 1986 he had indicated that he was married. "SRWW" confirmed that the signature in his pension claim was his, but he stated to the Tribunal that he had no idea when he had separated, although on reflection he said it could be 5 or 10 years ago. When asked if there was any particular incident that indicated to him that he and his wife had separated, "SRWW" replied that they had had a quarrel and "she took me to court," but he could not remember the year, although he stated that the case did not go ahead because "nobody appeared." "SRWW" further explained that he has had difficulty remembering things and he has had this difficulty for more than three years, which, with the passage of time, is getting worse.
When the Tribunal asked "SRWW" if he still loves his wife, he said the situation is difficult and "many times she is more distant than near." He further stated that he is not at home much and often goes for walks to his son's place, because his wife makes him very nervous by talking too much about "many worthwhile things" she wants him to do. "SRWW" explained that his wife wants certain things done in the house and garden, but he stated that "I can't do them and I lose patience …and I take off."
"SRWW" further stated that he and his wife do not eat breakfast together and that he prepares it himself. He and his wife had also been sleeping separately for several years as "I had not enough peace; I get very nervous with my brain problem." However, "SRWW" had never considered leaving as "my house is my house. We both worked hard and both come from respectable families in Calabria." The Applicant accepted that respectable families do separate nowadays, but stated that it was not always like that. He further added that he would not physically separate from his wife and live in separate dwellings, as he would have to pay rent and this would be ridiculous and not fair with the property he has. In addition, although "SRWW" believed that his children had known for a fair while (about his marital difficulties), none of them had asked him to go and live with them and he had never considered this either.
"SRWW" also stated that other people such as relatives and friends did not think of him and his wife as separated, and he was too ashamed to tell them that there had been fighting within his family. He further stated that he does not go to church and the priest never visits him at home nor knows about his situation. "SRWW" further added that he himself had never thought of getting a divorce because neither his wife nor his children had suggested that he should do so.
"SRWW" indicated to the Tribunal that he usually cooks for himself but sometimes, about once per week, his wife asks him if she should cook for him, although she eats by herself. Sometimes his wife cooks the evening meal for him, "SRWW" stated, but not every night. "SRWW" thought the question put to him by the Tribunal, of who washed the clothes was a stupid question, but when pressed, answered that the clothes are washed by the machine after his wife puts them into it. "SRWW" also stated to the Tribunal that there were no joint bank finances and these had been separate for a long time. He also stated that he has no credit cards but he has an NRMA card and a club card for the Lane Cove Club to which he goes once or twice a week. "SRWW" informed the Tribunal that he pays all the bills but his wife buys the food, except that sometimes he buys milk and bread. He also stated that he does not drive his wife to the shops or go with her and he himself walks to the shops.
The Tribunal then questioned "SRWW" about the Age Pension that he receives from the Italian government. He explained to the Tribunal that he is entitled to this pension because he had done National Service (in Italy) and had also made a small contribution while working in industry. "SRWW" was also asked about the "family allowance for a dependent spouse" as listed in an Article 17 notice about the Italian pension (Exhibit R3, p2). "SRWW" agreed that he was being paid money for his wife. He explained that he sometimes keeps this money to pay bills as needed and does not give his wife anything, but that other times he gives all of it to her. The Applicant stated that he receives this pension about every month and that it is worth about $Aus200.00.

The Tribunal again asked "SRWW" about being paid an amount of money for a dependent spouse by the Italian government because he is married, when he is saying (to the Department and the Tribunal) that he is separated. "SRWW" replied that he did not know how to explain this other than to say that his wife sometimes needed this money. The Tribunal noted to the Applicant that the issue was that "SRWW" is saying to the Italian authorities that he is married, but that he is holding out to the Australian authorities that he is not. "SRWW" stated that he understood the contradiction, but that he could only explain this by saying that if his wife asks him for money, he has to give it to her.
The Tribunal asked "SRWW" if he considers himself as still married. He replied: "Of course! I don't want to break the matrimonial link." He further stated that he still feels committed to his wife "if I have to," but when she makes him nervous, he gets angry. "SRWW" also stated that his wife looks after him when he is sick, assists him if he needs something and also manages his medication, which he requires on a daily basis. However, the injections which he needs for his diabetes are administered by his doctor.
In cross-examination, "SRWW" affirmed that he looks after the garden, watches television together with his wife, shares the furniture and utilities and, although he and his wife do not cook together, they also share the one kitchen in their home. In contrast, "SRWW" stated that he "hardly ever" shares the living room and uses a separate bathroom to his wife. The Respondent then referred the Applicant to the "Assessment of Living Arrangements" form (T18), where he claimed he and his wife had separated 15 years ago. When asked whether he had used a separate bathroom before this date, the Applicant agreed both that he had done so and that this constituted separate usage over a long period of time.
In the Applicant's view, a couple could be considered to be separated when there was no longer any rapport or communication between them and they "don't do things together." "SRWW" stated that he and his wife had not gone out together for at least 10 years. When they were a couple, communication was comfortable and easier, but "everything" had changed in their relationship, although he could not remember when this change happened, except that it was "several years ago, many years ago". However, when he is sick, his wife helps him to take his blood sugar level once or twice per week or fortnight, depending on his needs.
When the Respondent put to "SRWW" the possibility that although he might be having difficulties with his wife, he is not separated, he asked what the Respondent meant by this. The Tribunal then put to "SRWW" that there is a very big difference between having marriage difficulties and being separated and asked him whether it were possible that he is only having marriage difficulties but is not in fact separated. "SRWW" did not reply to this question but himself asked whether the Tribunal expected that he and his wife should live in separate houses.
The Respondent put to "SRWW" that although in his evidence to the Tribunal he had stated that he and his wife have separate bedrooms and bathrooms and have lived separately for several years, their marriage had not in fact broken down until at some point, the parties decided that it had. The Respondent further put to the Applicant that it appears that nothing has changed to before and that things appear to be the same. "SRWW" replied that although people might think the situation was the same, it was different because "before we had communication …[but] now for many years there was no communication."
The Tribunal again referred "SRWW" to the "Assessment of Living Arrangements" form (T18) and asked him if he had signed it. "SRWW" confirmed he had done so but that his daughter had translated and filled it out for him. The Tribunal then referred "SRWW" to question 25, where he had answered that he had been separated for 15 years (T18 p63), and asked him to describe what other differences there are in his marriage now, apart from no communication. "SRWW" stated that he and his wife "sometimes but not always" go together to family celebrations such as children's birthdays. He also indicated that he could not manage easily if he were left to live alone, because "you could die alone", and he has spoken to his wife about this. His wife has actually asked him to leave, but he has said to her "If I have my own house, why should I go?" His wife has also said to him "Go away, go away", but he has replied "I'll come back". "SRWW" also stated to the Tribunal that his wife had prepared the clothes that he wore to the hearing. However, he stated that he now does his own ironing, in contrast to when communication was good and his wife did his ironing if she had the time and vice versa, and they also shared responsibilities.
When "SRWW" was asked if he had made a will, he replied that he had and if he dies first, his wife is a beneficiary and vice versa, but if they both died, then the children are the beneficiaries. He stated that several years ago, he had left the house and lived with the children. He had also owned other property, but had since given it to the children. "SRWW" also owns an abandoned property in Italy, which had belonged to his sister who was now dead, but "nobody" owns the land.
The Tribunal then referred "SRWW" to his answer to question 27 in the "Assessment of Living Arrangements" form, regarding whether he had filed for dissolution of marriage (T18 p64). When asked to explain what he had meant when he replied "No, [not] at our age. It's not important", he first stated that he did not know but then said he had meant that he and his wife were elderly.
"SRWW" was then referred to question 18 in the "Assessment of Living Arrangements" form (T18 p62), where he had stated that he shared the bills with his wife. It was put to him that this answer was different from what he had said earlier at the hearing, that he pays all the bills. Thus there was a difference in that in March 2000, he had recorded that he and his wife had shared the electricity, gas and telephone bills "fifty-fifty", when during the hearing he stated that he himself pays all the bills. "SRWW" replied he did not know why his answer had been recorded like this and the truth is that it was he who pays all the bills. When asked what the truth is regarding his relationship with his wife, "SRWW" replied that "We don't have any more good conversation or good relationship any more. I don't see question 18 in Tdoc18 p62 as right."
Evidence of "SRXX"
"SRXX" is the wife of the Applicant. "SRXX" gave evidence that she and the Applicant became separated about 15 years ago but that the trouble had started about 18 years ago when her husband had an accident. "SRXX" explained that the Applicant used to do the home gardening for his boss at the engineering company where he was employed. After trying to pull back branches from the neighbour's garden, he experienced hernia trouble and later had back problems for which he saw a specialist and was told he needed to have an operation. In 1984, the Applicant had the back operation, during which the doctors also found a "black spot" on his head, for which he was also treated, receiving about 14 or 15 stitches along the top side of his head. The area was tested and was found to not be malignant, but "SRXX" stated that after this her husband "did not reason properly and was forgetting things".
When "SRXX" was asked when she and her husband had started fighting, she indicated it was about 1984 or 1985, when her husband did not realise his condition and felt that he had lost everything. When "SRXX" was asked to explain what she meant when she said she had separated 15 years ago, she stated that about 15 years ago her husband was behaving like he was her boss, mistreating her too much and not giving her any of the money he was receiving from the government because of his illness. "SRXX" further stated that she went to the Department to tell them what the situation was and also to come to some agreement with her husband. She could not remember when she had gone to the Department, but she could remember for sure that she left her husband's bed about 15 years ago.
The Tribunal referred "SRXX" to a file note of 11 May 1990 (T8 N2000/1443) made by a departmental officer, in relation to making an interview time with both the Applicant and herself and which also recorded as a query, the issue of their separating (T8 p30). "SRXX" stated that she could not remember that she had told the Department she wanted to separate in 1990, but she had told them before this.
"SRXX" explained to the Tribunal that the difference in her relationship with her husband following separation, was that now she does not do many things with her husband and "he goes his own way and I go my own way." She further noted that whenever she goes to see her sister there would be trouble and her husband accuses her of having fun with other people. "SRXX" also stated that her husband physically hurt her and this had started about 35 years ago. She had kept this to herself out of respect for her family and because she had three children and had nowhere to go. "SRXX" stated to the Tribunal that "we don't have separation and divorce easily. I suffered all my life for respect and morality of family." The children do not know about the separation, apart from her daughter who knows everything. "SRXX" further added that after the children left, she had both more freedom in her own room and her husband calmed down a bit himself, not hitting her after she told him that she would leave.
"SRXX" noted to the Tribunal that the police were only called on one occasion. Her husband had started to beat her and she hit him over his head with the telephone book she had in her hands. It was her husband who called the police, who came, but did not take sides, suggesting instead that she and her husband should reconcile.
On another occasion about 12 years ago, "SRXX" was cleaning the house when her husband hit her in the ribs and cracked them during a quarrel over a pot plant that she had brought inside. "SRXX" went to the doctor who told her that she needed to stay in bed for 40 days. She stayed one month with her daughter who told her she had to leave her husband. Her daughter made arrangements with a magistrate to have the matter heard in court. "SRXX" said her husband saw a lawyer who told her that her husband wanted to suspend the action. She and her husband then saw a magistrate who asked her if she wanted to go on with the action or to forgive everything. "SRXX" told the magistrate she would forgive her husband and let the court action go because "he's the father of my children." She further noted to the Tribunal that the magistrate advised her that if anything happened again, the matter would still be listed.
In response to the Tribunal's question whether she still loves her husband, "SRXX" stated that she loves him "like a friend, not as husband and wife", but she also noted that she had not thought of living elsewhere as her daughter has no room and her sons want peace and quiet. She also informed the Tribunal that she does the cooking for herself and her husband, cooking lunch on a daily basis. She also does the washing of the clothes because "I know how to do it."
"SRXX" further informed the Tribunal that she used to pay the bills equally but after so much trouble, her husband was doing the sums in a different way and giving her the pension for about one and a half years. In regard to the Italian pension, she did not know that her husband was receiving a family allowance for her until she saw the letter from the Italian government. "SRXX" further stated that she had then asked him why "he didn't give me my money." but she added, that "after they cut the pension," her husband started giving her all of it. She then said that he stopped paying the pension to her because when there was so much trouble, she told him to take all of it and pay the bills himself to avoid trouble.
"SRXX" emphasised that she shops for food for the house but agreed that her husband sometimes buys bread and milk. She also noted that both she and her husband clean the house and share household duties, but that her husband mostly does the vacuuming because her doctor has forbidden her to do it. "SRXX" added that she and her husband have some respect for each other, but as far as the question of a husband-wife relationship is concerned, she added "forget that, he's no good [and because of] my suffering I've endured, I stay away from him." She further noted to the Tribunal that she is in a separate bedroom, her husband has the matrimonial bedroom and, although they shared the bathroom before, she now has the bathroom and her husband the shower (in a different room). However they sometimes watch television together, although her husband usually listens to the radio in the dining room.
"SRXX" noted to the Tribunal that she and her husband never go out together but they do sometimes go on family outings and to see their grandchildren who consider their grandparents as married and not separate. In response to the Tribunal asking her to describe how she and her husband spend their day, "SRXX" noted that in the morning she fixes the house and goes to the shops, then she prepares lunch and later watches "Days of Our Lives", following which she goes for a walk with her sister and returns home about 4pm. She added that sometimes she and her husband eat lunch together but he goes to bed after lunch. "SRXX" also stated that she only speaks to her husband when things have to be done.
"SRXX" further stated that she never goes to the Club with her husband. In response to the question whether they have any friends visiting them, she stated that they have friends nearby. "SRXX" also informed the Tribunal that she assists her husband with his medication and in relation to his diabetes, although he "punctures" himself, she takes care of the machine which monitors his blood sugar levels. "SRXX" stated that she also looks after her husband's tablets and other medicine, because he does not know or understand what to do, but she added that she only does this when her husband looks confused.
The Tribunal put to "SRXX" that it appears that she still cares for her husband, but she replied that she cared for him only as a neighbour, not as a husband and not in the sense of a relationship, but only as one cares for someone in need. "SRXX" informed the Tribunal that her best clothes are in the wardrobe in her husband's room, but her casual clothes are in her room and she takes care that her husband does not come into her room. She also added that she has asked her husband to leave or go away from her home, but his reply has been that "they'll put him out of the house when he has to go to the grave".
When the Tribunal re-iterated to "SRXX" that the Department had assessed her and her husband as not being separated, she replied that although they might not appear to be separated in people's eyes, they are in fact separated and this was the reason they had made the application to the Department. "SRXX" added that she had suffered and "I should have what I'm entitled to." The Tribunal further noted to "SRXX" that it also seems that she and her husband still share things and that it could be that others would say that the Applicants were setting themselves up to be single, when they were not in fact single. "SRXX" replied that she understood what the Tribunal was saying, but the Department would have to send someone to look after her husband because he could not help himself. She also noted that she had never asked for a Carer Payment, even though her husband is sick and that she has suffered "because of my morality." She also noted that if she were 40 years old she could cope, but she is now 74 years old.
In response to the Tribunal's question as to whether she has a will, "SRXX" replied that she does and she explained the terms are that if she dies, all the assets would go to her husband and vice versa.
When the Respondent asked "SRXX" whether anyone of professional standing, such as a priest or doctor, knew of her separation, she replied that no-one did, as she had not told anyone out of shame and respect for the marriage vows and institution. "SRXX" further noted that it was one thing to be separate in bed, but another to be separate in the eyes of people, as God allows separation in bed, but not to be completely separated. "SRXX" further opined that separation constitutes being separated in everything, but in this situation it means being separate in bed and in the relationship, but staying in the same house out of necessity.
In relation to a further question as to whether there were disagreements or fights between "SRXX" and her husband when they first married, she replied that there were always fights. When the Respondent noted to "SRXX" that she had just stated to the Tribunal that a couple is separated when there is no agreement between husband and wife, "SRXX" agreed that she had said that, but from the beginning there was no agreement between herself and her husband, but they had put up with it for "the morality issue." When asked why she had come to Centrelink in March 2000, "SRWW" replied that it was to get the single rate of Age Pension because she considered herself to be worse off than a single person, for financial reasons and for everything else. In response to the question whether "SRXX" thought she had a "bad marriage" but was not separated, she opined that she did have a bad marriage and as far as matrimony goes, it would be better if she were separated. However she did not separate, because she considered everything, not just herself but her children, her sisters and her own shyness.
When the Respondent put to "SRXX" why Centrelink should treat her as a separated person for her to get the single rate of Age Pension when the Italian government treated her as married, "SRXX" replied:
"Should I open the eyes of everyone in Italy? My husband will lose his allowance. What's the difference for Social Security or anyone else?"
The Tribunal put to "SRXX" that she could not hold out to one set of authorities, namely the Italian government, that she and her husband are a married couple but continue to ask the Australian government to consider that they are separated, as these are completely different things. In response, "SRXX" asked why the Italian authorities had not asked her if she were separated or not and further stated that she had never considered whether she should tell the Italian government. The Tribunal advised "SRXX" that she has to tell the truth and that one of the situations is true and the other is not. "SRXX" replied that if the Italian government asks her she will tell the truth and she further noted that if she were to be separated completely and divorced, then it would be the same for Italy.
The Respondent put the hypothetical question to "SRXX" that if things were hard for her financially and if she were eligible for a Carer Payment, would this change her attitude to separation. "SRXX" replied that if the Department did not want to give her the single pension then she would take something for the suffering she has endured. When the Respondent noted that her question related to whether "SRXX" would change her view as to whether she was separated or not if she were to get the Carer Payment, "SRXX" affirmed that as far as she was concerned she would not change her mind. "SRXX" also noted that she had nominated only her daughter as her next of kin and that she was ashamed.
Evidence of the Daughter of "SRWW" and "SRXX"
The Applicant's daughter stated that in her eyes her parents are not a couple, because they do not behave as a married couple and do not relate in any way. She noted that she herself had been married for six years and had divorced but had now been in another relationship for seven years. The Applicant's daughter further explained that her parents do not relate as a married couple because a couple must share, communicate, have a sexual relationship, etc., but her parents have none of this. She further stated that they stay together because they have a high level of morals and honour but they do not know what a marriage is.

The Applicant's daughter noted to the Tribunal that when she had asked her mother why she did not divorce, her mother had replied "What will people say? I can't destroy the family honour." Her father had also said it was a question of honour and that he was ashamed that his daughter was living with a man to whom she was not married. She further noted that her brothers were not fully aware of the situation but they do not consider their parents married. Her aunts have also not talked about this as it was a taboo issue and kept "hush hush," but there was an awareness there and unofficial knowledge.
The Tribunal referred the Applicant's daughter to question 27 in the "Assessment of Living Arrangements " form (T18 p64), regarding whether the Applicant had filed for a dissolution of marriage and where her father had answered that "at our age [it's] not important". She confirmed that she had assisted her father in completing and signing the document. The Applicant's daughter then explained that her father had meant "what's the point at our age? [In relation to] the house, we can stay here as separate people." In response to the Tribunal's question as to whether it was her idea to have her mother and father apply for the single rate of Age Pension, the Applicant's daughter first stated that her mother was there just as a carer, but on further questioning, she added that she may have mentioned this to them.
The Tribunal asked the Applicant's daughter to describe her observations on her parents' sharing arrangements in relation to for example, vacuuming, cooking and shopping. The Applicant's daughter stated that her mother is like a manager who looks after her father out of kindness and for safety reasons because he cannot do anything on his own. She concluded that her parents are not a married couple, they lead separate lives, they are not happy and their life together is a complete sham.
Final Submissions of "SRWW" and "SRXX"
"SRWW" submitted to the Tribunal that as far as he and his wife were concerned they have no relationship as man and wife and that there was no need to broadcast this to all of Italy. When the Tribunal put to "SRWW" that this represents a contradiction, he concurred that he knew this was so. In response to the Tribunal's stating that it has to consider this contradiction, "SRWW" replied that "if the law is the law, then let the situation be what it can be." "SRWW" concluded that the Tribunal should consider that although people see him and his wife as married, in reality they are not. It was up to the Tribunal to then consider all he had said. "SRWW" concluded that he would continue to live in Australia as long as he could.
"SRXX" stated that if the Tribunal did not find for her and her husband, then her husband could go in a nursing home and she could claim for him because she could not go on like this any more. "SRXX" further added that she felt sorry for her husband and right from the beginning, she said although they look like husband and wife, they are not such and what she does for him she does for the love of God. She had nothing further to say and she would leave it to the will of God, adding "I'm already ashamed."
Respondent's Final Submissions
The Respondent's Statement of Facts and Contentions outlined for the Tribunal in chronological order, the facts upon which the Respondent relies in order to establish that "SRWW" and his wife are living in a marriage-like relationship and that he is a member of a couple for the purposes of determining the correct rate of payment of his Age Pension
In her oral submissions to the Tribunal, Ms Fahey contended for the Respondent that marriage can be described in many ways and that there was no ideal marriage. Ms Fahey stated that the Applicant and his wife had been married for 49 years. She further contended that their relationship had not substantially changed for the last 15 years and that they have shared the vicissitudes of married life over this time. Ms Fahey concurred that there was no dispute that there were difficulties in the marriage. However the Respondent's submissions were that the marriage has not irretrievably broken down and that the weight of evidence given to the Tribunal supports the Respondent's view that the Applicant and his wife are living in a marriage-like relationship
In relation to the evidence regarding the financial situation , Ms Fahey contended that the evidence of "SRWW" and "SRXX" at the SSAT and on the "Assessment of Living Arrangements" form was different to their evidence given at the Tribunal hearing. The Respondent's submission was that the financial situation of the couple is unclear at this time, but it is evident that "SRWW" is paying all the bills and "SRXX" is paying for the food and other household incidentals. Ms Fahey contended that this suggests some financial arrangement and certain decisions being made in regard to the financial situation. However Ms Fahey further contended that although it is not certain what weight can be given to the financial evidence in relation to the present, at the time of the application by "SRWW" there was certainly the sharing of the day to day expenses. Ms Fahey also submitted that although the Applicant and his wife state there is little emotional attachment between them, many of their actions go beyond those expected of friends. Furthermore, Ms Fahey contended that even though the Applicant and his wife consider themselves as separated, they present themselves to the community as a couple.
Ms Fahey also submitted that the Applicant and his wife should not be treated as married in relation to the Italian pension but as separated for the Australian benefit. Notwithstanding their evidence regarding their status, this is at odds with their representation as being married to one authority but separated to another, Ms Fahey contended. Therefore, Ms Fahey submitted that the Tribunal having applied subsections 4(2) and 4(3) of the Act in forming an opinion as to whether a person is married, should conclude that the decision of the Social Security Appeals Tribunal is correct and should therefore be affirmed.
Findings
The Tribunal has reached a decision in these matters, taking into account the oral and documentary evidence, the submissions, legislation and case law. Although "SRWW" and "SRXX" have made separate applications for review to the Tribunal, both "SRWW" and "SRXX" provided evidence to the Tribunal in relation to each of the applications for review. Therefore, the Tribunal has made its findings in relation to "SRWW's" application for review and "SRXX's" application for review in similar terms because the evidence and the findings of fact are intertwined.
The Tribunal notes a number of inconsistencies between the evidence given to the Tribunal by both "SRWW" and "SRXX", as compared to the evidence given to the SSAT. In part, this can be explained in "SRWW's" case, because of difficulties he has with his memory, which the Tribunal considers are genuinely health-related issues.
It is clear to the Tribunal that "SRXX" principally wishes to have her single status recognised because it will mean a financial gain to her in respect of the receipt of the single rate of Age Pension. "SRXX's" evidence to the Tribunal was that she is entitled to a higher rate of Age Pension because of the suffering she has received during her married life with "SRWW". "SRWW", although stating that he and his wife live separately and apart under the one roof, was much more forthcoming in his acknowledgment of the reliance he places on his wife's care and concern. Further, "SRWW" was not able to make clear statements to the Tribunal that he did not love his wife.
The Tribunal notes that each individual case must be considered on its merits and in today's world, the indicia of a marriage or a marriage-like relationship and being a member of a couple has very different connotations, depending on the circumstances of the couple and the context in which their relationship occurs. It behoves decision-makers to look at the merits of the individual case and to be flexible in its findings about such matters. This is not a case where one can apply specific role models or conventional standards. These general principles have been discussed in a number of decisions of Tribunals and Courts and the Tribunal has specifically gained some assistance in considering the individual merits of a particular case, when considering decisions such as Re Secretary, Department of Social Security and Le-Huray (1995) 36 ALD 682 and also Secretary, Department of Social Security v Le-Huray (1996) 138 ALR 533.
"SRXX" and "SRWW" come from very traditional Italian backgrounds and they stated that they have not formally separated because they feel embarrassed and shameful over their situation. "SRXX" and "SRWW" hold themselves out to their family (apart from their daughter), to friends, and the community in general, as being members of a couple. "SRXX" and "SRWW" attend family functions together and are visited by friends in their home, where they continue to hold themselves out as being married.
The evidence available to the Tribunal is that "SRXX" and "SRWW" have always had a difficult relationship. While "SRWW" indicated that there was an earlier time when he and his wife's communication was good, "SRXX's" evidence, which the Tribunal on this point considers more reliable, is that the relationship has always been difficult. This conclusion is also supported, the Tribunal finds, by the evidence of the daughter of "SRWW" and "SRXX", who told the Tribunal that her parents' marriage is a sham, "they do not know what marriage is". The Tribunal also considers that the evidence in relation to the financial aspects of "SRXX's" and "SRWW's" relationship, is that the financial obligations are shared. In this regard, the evidence is that in recent times, "SRWW" has taken the responsibility for paying all the household bills while "SRXX" buys all the food and required household items. Previously, the documentary evidence was that the financial obligation for the household and economic responsibilities were shared "fifty-fifty". Whether the Tribunal takes the earlier evidence of a sharing of all of the financial commitments or in more recent times, the division of responsibilities, the fact remains and the Tribunal also finds, that there is a sharing of the financial responsibilities of this couple.
The Tribunal notes also and this evidence is not disputed, that "SRWW" receives a pension from the Italian government, included in which is an allowance for his spouse, "SRXX". The evidence to the Tribunal is that this spousal allowance is given directly to "SRXX". Not only is this further evidence of "SRWW" and "SRXX" holding out to the outside world that they are members of a married couple, but there is also an indication of a sharing of financial arrangements in "SRWW's" providing the spouse allowance to his wife.
"SRXX" has told the Tribunal that she does care for "SRWW" in his daily health needs, monitoring his medication and assisting frequently with the further monitoring of his diabetic condition. The Tribunal's consideration of "SRXX's" evidence indicates to it that "SRXX" has a level of commitment and involvement beyond that which could be expected of a friend providing care to another friend. "SRWW" in his evidence indicated his acknowledgment of his need for his wife's care and attention and an understanding of the commitment it represented.
"SRWW" and "SRXX" jointly own the family home. The Tribunal notes the decision in Re Holmes and Secretary, Department of Social Security (1987) AAT 4046, 23 December 1987, in which that Tribunal noted the numerous cases coming before the Tribunal where the reason for remaining under the one roof is the fact that the property was jointly owned and that a physical separation would be economically disastrous, as neither party could afford to maintain separate households. In that case, the Tribunal noted that the evidence must satisfy a decision maker that a couple's lives are led separately, not only in a personal sense but also in economic and social senses. Any joint activity should be able to be perceived not as arising because of the existence of an exclusively binding relationship, but for some material advantage.
After considering Staunton-Smith v Secretary, Department of Social Security (supra) and the various factors appropriate to be considered in that decision as to whether two legally married people are living "separate and apart", the Tribunal finds that "SRWW" and "SRXX" do live in separate bedrooms and do not have a sexual relationship. The couple does, however, share common areas of the home, including the kitchen and the area in which the television is located. The Tribunal notes the evidence that "SRXX" cooks lunch on most days for her husband and that they tend to eat together. Breakfast and dinner appear to be eaten separately at different times. "SRXX" and "SRXX" do not share the same bathroom, each utilising a separate bathroom. The evidence is, however, that these circumstances have been long standing and have been in place before the assertions of the couple of their living separately and apart.
"SRWW" and "SRXX" are beneficiaries under each other's will and in the event of their demise, the children of the marriage are equal beneficiaries.
"SRWW" and "SRXX" in their demeanour before the Tribunal attempted to indicate their separateness. Nevertheless, the Tribunal considers that while this was subjectively stated, objectively it was not supported. The Tribunal obtained guidance in the determination of these issues by its consideration of Re Hucker and Secretary, Department of Social Security (1992) 26 ALD 226. In that decision, the Tribunal noted:
"As the couple have become older and as the applicant's health has deteriorated it has become more difficult to distinguish this unhappy relationship between two long time legally married persons from hundreds of other unhappy marriage relationships."
In the case of "SRWW" and "SRXX", the Tribunal considers that the existing unhappy and unsuccessful marital relationship between this couple has had further pressure placed upon it by "SRWW's" ill health. It is in these circumstances, the Tribunal finds, that "SRXX's" feelings of unhappiness and an inequitable situation are raised, because she is of the view that her entitlement to some form of compensation must be granted for the additional care and attention she feels required to provide her husband, in a situation which for very many years has been unhappy.
The Tribunal did not obtain satisfactory answers in relation to questions put to "SRWW" and "SRXX" concerning the fact that their marriage had always been unhappy. In considering this matter, the Tribunal has evidence of "SRWW" and "SRXX" not having a sexual relationship and living in separate rooms. Against this evidence, must be balanced the evidence of "SRXX's" caring for her husband's health on an almost daily basis, monitoring his medication, his diabetic condition, cooking a meal each day for him and of there being a sharing of the financial obligations for the household, both in relation to bills and the supplies required to keep the household running. Further, "SRWW" and "SRXX" hold themselves out to all but one relative as married and though they state they are unhappy, even in relation to their daughter's evidence, the conclusion is that the marriage has always been bad. Further evidence of the continuation of their being a member of a couple is provided by the fact that "SRWW" receives an Italian pension, which has a significant component for his spouse.
While "SRWW" and "SRXX" maintain to the Tribunal that they are not members of a couple and that their reason for staying together is economic and morally or socially based, the weight of objective evidence, the Tribunal finds, indicates that "SRWW" and "SRXX" are members of a couple, albeit an unhappy couple, who have maintained a marital relationship which has been unhappy virtually since its inception. Further, the Tribunal cannot accept that the level of care and concern as provided by "SRXX" can be explained only by moral obligations, as one might expect from a friend. In addition, the Tribunal must also consider that it is not acceptable for "SRWW" and "SRXX" to hold out to the Australian authorities that they are not members of a couple, while very clearly and publicly, they are holding out to the Italian authorities that they are members of a couple and are happy to receive the financial benefits that such a relationship provides.
Thus while the Tribunal finds that there are some indicia which are indicative of a separation between the couple, the weight of objective evidence is that "SRWW" and "SRXX" do live as members of a couple and accordingly, are not entitled to payment of the Age Pension by the Australian government at the single rate.
The Tribunal's determination in this matter has been difficult and involved the consideration of complex issues in relation to subjective and objective matters. In all the circumstances, however, and for all the reasons set out above, the Tribunal considers that "SRWW" and "SRXX" continue to be members of a couple. Accordingly, the decision under review is affirmed.
The Tribunal makes the following comment that on the evidence, it does appear that "SRXX" is providing a high level of care for her husband. While not within the Tribunal's purview at this time, "SRXX" might consider testing her qualification for a Carer Payment.

I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member
Signed:         ..........[sgnd]...................................................................
  Stella Vaughan, Associate
Date of Hearing  24 April 2001
Date of Decision  6 June 2001
Representative for the Applicant              Self represented
Representative for the Respondent        Ms S Fahey, Departmental Advocate