"SRAA" and Department of Family and Community Services

[2001] AATA 960

DECISION AND REASONS FOR DECISION [2001] AATA 960

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/1907

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      "SRAAA"     
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Ms J Shead, Member        

Date23 November 2001   

PlaceSydney

Decision      The decision under review is affirmed.   

[sgd] Ms J Shead
  Member
CATCHWORDS
Social Security – age pension – whether Applicant is a member of a couple
Social Security Act 1991 section 4
Staunton-Smith v Secretary of Department of Social Security (1991) 25 ALD 27
Lambe v Director-General of Social Services (1981) 4 ALD 362
Lynham v Director-General of Social Security (1983) 52 ALR 128
Re Bagy and Secretary to Department of Social Security (1993) 30 ALD 331
Re Smith and Secretary to Department of Social Security (1985) 7 ALN 371

REASONS FOR DECISION

Ms J Shead, Member                    

1. This is an application by SRAA ("the Applicant") for review of a decision of the Social Security Appeals Tribunal  ("SSAT") made on 22 November 2000 which affirmed a decision of an authorised review officer made on 27 October 2000, which affirmed, on internal review, a decision of a delegate of the Secretary to the Department of Family and Community Services ("the Respondent")made on 27 September 2000 that the Applicant was a member of a couple for the purpose of assessing his rate of Age Pension pursuant to the Social Security Act 1991 ("the Act").

2. In his application to the Tribunal for review of the delegate's decision, the Applicant had stated:

   "All the circumstances of my case have not been considered." (T1)

3. The Applicant attended the hearing and he was represented by Ms S Clarke, Solicitor, of the Welfare Rights Centre. The Respondent's advocate was Ms S Fahey. 

4. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit T1 to T32 - "the T documents"). The following documents were also tendered to the Tribunal:
   Exhibit Number       Description    Date   
   Exhibit A1     Applicant's statement of facts and contentions 10 April 2001
   Exhibit A2     Applicant's List of Authorities       15 May 2001
   Exhibit A3     Letter of the Applicant's friend      8 April 2001  
   Exhibit A4     Letter of another friend of the Applicant  14 April 2001
   Exhibit A5     Note of telephone messages        Undated        
   Exhibit R1     Respondent's Statement of Facts and Contention       15 May 2001
   Exhibit R2     Centrelink Memorandum    18 August 2000       
   Exhibit R3     Charles Pitt Accountant's statement        2 August 2001         

1. At the commencement of the hearing, it was submitted for the Applicant that the circumstances surrounding the Applicant and his marriage were such that the Tribunal should suppress the publication of the names of the Applicant and all witnesses. The Tribunal made the order pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 prohibiting the publication of the names of the Applicant and his witness.

2. Oral evidence was given by the Applicant and a friend of the Applicant ("the Applicant's friend") gave evidence by conference telephone.
   Issues

3. There was no disagreement between the parties that the issue was whether or not the Applicant is a member of a couple.

4. On behalf of the Applicant it was submitted that the Applicant should be treated as living separately and apart from his wife.  It was contended that he should be assessed for the age pension as a single person.   In particular, it was contended that the Applicant and his wife had been living separately and apart but under the one roof since 23 September 1999.

5. On behalf of the Applicant, Ms Clarke told the Tribunal that the Applicant's wife had declined to give evidence and that she had stated her reasons were "Culture and all that – you know, cultural reasons."

6. Under subsection 4(3) of the Act, in forming an opinion about the relationship between two people for the purposes of sub-paragraph (2)(a) of subsection 4(2) the Secretary, and therefore the Tribunal in this application, is required to "have regard to all of the circumstances of the relationship". The Act then particularises specific matters.
   Legislation

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

   "4 (1) In this Act, unless the contrary intention appears:
   ...
   member of a couple has the meaning given by subsections (2), (3), (3A), (6) and (6A).
   ...
   4 (2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
   (a) the person is legally married to another person and is not, in 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
   ...
   4 (3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2) (a) or subparagraph 2 (b) (iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
   (a) the financial aspects of the relationship, including:

   (i) any joint ownership of real estate or other major assets and any joint liabilities; and
   (ii) any significant pooling of financial resources especially in relation to major financial commitments; and
   (iii) any legal obligations owed by one person in respect of the other person; and
   (iv) the basis of any sharing of day-to-day household expenses;

   (b) the nature of household, including:

   (i) any joint responsibility for providing care or support of children; and
   (ii) the living arrangements of the people; and
   (iii) the basis on which responsibility for housework is distributed;

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

   (i) whether the people hold themselves out as married to each other; and
   (ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
   (iii) the basis on which the people make plans for, or engage in, joint social activities;

   (d) any sexual relationship between the people;
   (e) the nature of the people's commitment to each other, including:

   (i) the length of the relationship; and
   (ii) the nature of any companionship and emotional support that the people provide to each other; and
   (iii) whether the people consider that the relationship is likely to continue indefinitely; and
   (iv) whether the people see their relationship as a marriage-like relationship."

FINDINGS OF FACT BY THE SOCIAL SECURITY APPEALS TRIBUNAL

1. The SSAT made the following findings of fact:

   "23.     It is not in dispute that Mr and Mrs SRAA were legally married on 7 February 1969, and they have resided in the same home as each other since that time.

   Financial aspects of the relationship

   24.It is not in dispute that Mr & Mrs SRAA jointly own the house at SRAA.  There is no mortgage.  The investment unit at SRAA is in both their names.  On 5 July 2000 Mr SRAA and Mrs SRAA entered into an agreement with an agent regarding the sale of that property.

   25.For most of the year 2000, Mr SRAA has been paying water and council rates and Mrs SRAA and their two sons have been paying the telephone and electricity bills.  Mr SRAA stated that he buys his own food.

   Nature of the household

   26.The tribunal accepts Mr SRAA's evidence that Mr and Mrs SRAA do not share a bedroom and each have their own bathroom, and this has been an arrangement which has been on and off over the entire marriage.

   27.The tribunal accepts that no meals are eaten together and that Mr SRAA buys his own food, and on most nights eats in a restaurant.

   28.The tribunal finds that Mr SRAA and his wife communicate poorly, but appear to do so effectively in relation to their joint investment dealings.

   Social Aspects of the Relationship

   29.The tribunal accepts that Mr SRAA and his wife do not share any social or leisure time and that their sons are aware of the separation, and some close members of their community.

   Sexual Relationship and Commitment

   30.The tribunal accepts that there is no longer a sexual relationship between Mr and Mrs SRAA but that this arose as a result of physical inability three or four years ago.

   31.There is no evidence that Mr SRAA or Mrs SRAA have obtained legal advice regarding separation or divorce, property settlement.  As well, there are no plans to change their living arrangements and Mr SRAA's evidence is that he intends to stay in the house while his adult sons remain at home.

   32.There is no evidence that Mrs SRAA holds herself out to be separated."

EVIDENCE

1. The Applicant's evidence was that he had been born in 1935 and he had married his wife in 1969.  His wife was born in 1938.  They had come to Australia in 1985.   They have three children, a married 29-year-old daughter and two sons aged 28 years and 30 years, both of whom lived at the Applicant and his wife's residence.  His wife continued to work at the Australian Taxation Office where she had worked for about 15 years and it appeared from her salary that she worked in a senior position.  His eldest son had been employed for five or six years and the youngest son was undertaking a Masters course.

2. The Applicant and his wife had bought their residential property in 1994 and they owned it as joint tenants.  They had demolished the old house and built a new house.  The Applicant said it had been financed with some savings, a bank loan and some money from his former business.  He described the house as having four rooms upstairs with ensuite and another bathroom, and downstairs as having a kitchen, a guest room, a study, a bathroom, laundry and a garage.  He used the study for reading and also tended the garden.  He estimated the value of the house was about $600,000.00.

3. The Applicant stated that on 23 September 1999 he and his wife had an argument concerning the Applicant's share in their house.  He stated that he did not have a will.  His wife had been concerned that when he died that he would leave his share of the house to his family.  They had a history of arguments that usually ended at the same point.  He said his wife wanted his share of the house. The Applicant stated that he understood the distinction between ownership as tenants in common and joint tenants and also that as the residence was owned as joint tenants on his death his share would devolve to his wife.  He said however that he did not think his wife knew that distinction.  He said that he had told her " … there is no point in continuing to live with you."  Later that day he had moved to the downstairs part of the residence and since then he had " … exclusively use(d) the downstairs … ".  He slept in the guest room, used the downstairs bathroom and toilet, and used the study for his reading.  He stated he used "the kitchen when others are not using it."

4. The Tribunal was also told by the Applicant that in September 1999 he and his wife had owned an investment unit. The investment unit had been purchased in December 1996 and they also owned it as joint tenants.  They had financed it with a Commonwealth Bank loan and that loan had been paid partly by the rent and partly by the Applicant.  In about May 1999 the Applicant had started negotiations to refinance the loan with the ANZ Bank, however his wife had not been keen to have their residence as security for the investment property.  He stated that he said to his wife:

   "Finally when I told her that if she doesn't agree I will not pay the instalments and I told at the bank do whatever they want, they can come and grab the house, or grab the unit, or whatever, and then only she agreed to sign the loan application in May/June of 1999.   That of the loan part of it, and then I think somewhere by early 2000, I can't exactly remember, 1999 I decided to put the property on the market." 

He stated that the loan with the ANZ Bank had been signed about 9 September 1999. 

1. The Applicant stated the investment unit had been sold and settlement of that sale had taken place at the beginning of May 2001.  He had communicated with his wife about that sale by leaving notes on the kitchen table and telling his children to ask her to sign paper work and at other times, for instance, he had the real estate agents ring his wife directly. Consequential upon that sale there was a shortfall in the loan of about $20,000.00 and he stated he would have to pay it.  In later evidence he stated that the residential property was security for that liability (transcript page 25).

2. The following interchange occurred:

   "Ms Clark: You have said that you own the property, your residence is joint tenants. Have you thought about having a property settlement with your wife to divide that asset ?

   Applicant:       The residence ?
   Ms Clark:       Yes ?

   Applicant:No, the thing is when the property market was very good, that is just before the Olympics, I had settled this question with my wife that we sell this property, and in fact I got real estate people to give her the rent, and she always refused to sell the property, because at that time I would have got a significant amount, but now the market has come down and if I were to sell the property between what I could have got just before the Olympics and now, I would be losing about $60 – 70,000.

   Tribunal:You might ask your client to answer the question that you put to him, Ms Clark.

   Ms Clark:I want to know whether you have considered having a property settlement with her, as in divide your assets between you and her ?

   Applicant:I mean, the only way could be settle is by disposal, and if the house is disposed my share itself will be significant, so the house – at this particular moment I am not keen to sell it, maybe in due course if the market picks up.

   Ms Clark:You are saying that you have thought about having a property settlement then, is that right ?

   Applicant:       I have been talking about it, thinking about it.
   Ms Clark:       You have decided against it, is that what you are saying ?

   Applicant:I have decided selling that property just now, I was thinking, I was always asking my wife previously when we were not separated that we will sell it, and then she always refused.  Now at the moment I don't think she will agree, I don't know what she will say but right now I have already lost on the Pyrmont property about $35,000.

   Ms Clark:       And you fear further losses?
   Applicant:       And I don't think it's prudent to just incur another loss on the house.

   Ms Clark:In a property settlement with your wife, would you expect that it would be easy to get agreement?

   Applicant:       With the house ?

   Ms Clark:Yes, that it would be easy for you and your wife to agree with each other?

   Applicant:I am sure she will not agree to sell it so it has got to go to courts, which you will understand is very expensive.  No way she will agree to sell the house, it has got to go to courts, so it's going to cost money in courts, it's going to cost time, and it's going to cost me capital loss.  So right now immediately it's not prudent at all to go to court.  The only way I can settle this is by going to court that I know." (Transcript pp 12-13)

3. The Tribunal then heard evidence that the Applicant is a director with a 99 per cent shareholding in a company.  His wife is also a director and has a one per cent shareholding in that company.  In response to the Tribunal's questions the Applicant stated that the company was the corporate trustee of a discretionary trust established in 1986.  The Applicant told the Tribunal that his wife continued to be an officer of that corporate trustee as he anticipated it would be " … extremely difficult to get her to part with those shares because she's under the notion that she has a sort of a, you know, I mean … she thinks she can control the trust because she is a director in the corporate".  The Applicant stated that there was power in the trust deed to remove the corporate trustee.  He agreed with the Tribunal that he had taken no action to change trustees of that trust.

4. The Applicant's further evidence in chief was that when he had applied to Centrelink for benefits he had nominated payment into an account that was in his and his wife's joint name at the Commonwealth Bank.  The Applicant stated that account had been utilised for the Commonwealth Bank loan payments and that his wife had never used that account at all.  He stated there were no other joint accounts.

5. In relation to household expenses, the Applicant stated that previously he paid all the bills and his wife bought the groceries, however he now bought his own groceries and he paid the council and water rates.

6. In relation to the nature of the Applicant's household, the Applicant stated that he no longer ate meals with his family, that he went out by himself and that he no longer communicated directly with his wife but rather sent messages to her via his sons. 

7. In response to his Solicitor's question "Have you talked to other people about your separation?" the Applicant stated "I really don't talk about this with other people" and that "Separation is not really looked at well in the family standing, in our community."    He further stated there were still a lot of arranged marriages in the Sri Lankan community and that

   " … we like to settle our children in good families, so when I have to go look for such kind of places then if the other party is aware that the parents are separated or not in very harmonious life, they will straight away they will not proceed with considering the marriage for their children." 

8. The Applicant stated that he had no social life and formerly had shared a social life with his wife. He stated he engaged in a lot of community work.  Asked by his solicitor "What community is that?", the Applicant replied "The Tamil community.  We look after – the organisation I help – we look after refugees back home.  My wife, of course, she is working, so I think for her also, I think she must be minding her own way.  So social life is not very glamorous for us."  He and his wife had travelled overseas together many times "and since separation nothing had happened."  In November 1999 he went to Sri Lanka by himself.  He said he had no relationship with his wife saying "I am just there by myself – shall I say I am like a boarder there.  You know I am just there occupying a room."

9. During cross-examination the Applicant stated that he had not told any person such as a doctor or the priest at his Temple "or some other prominent member, look, Mr So and So, I am separated, I am just living separately under the same roof.  I would not dare tell them, I have not told."  He expected that situation to continue.

10. In response to Ms Fahey's questions as to why the Applicant had shown his wife as his spouse in his income tax return for the year 2000, the Applicant stated that he "thought she is still my spouse" and that his wife was jointly responsible with him for the liability of $20,000 loan owed to the ANZ Bank.

11. The Tribunal's further questions to the Applicant confirmed that the discretionary trust had over $100,000.00 on deposit.  The Applicant stated he was entitled to about $30,000.00 to $35,000.00 of the trust moneys.  He withdrew $200.00 to $300.00 a week for his living expenses and more when he had to pay rates.  He also paid registration for two motor vehicles registered in his name.  His youngest son used one of those vehicles.  His son that worked did not pay board.  He also had a superannuation fund account of about $25,000.00.  He said that five or six years ago he had nominated his wife and children as beneficiaries of that fund.  Since he had retired he had made no application for the superannuation proceeds.

12. Asked by the Tribunal whether he had taken legal advice concerning a property settlement, the Applicant stated "I've just talked about it with my solicitor friends."  The Tribunal put to the Applicant: "You've made the disclosure that you and your wife are living separately and apart to those friends?"  and the Applicant replied "Yes, I told them that I have problems, quarrels with my wife and how best can this residence of property can be sold."  He told the Tribunal the friends were not of his community but that he regarded them as close friends. 

1. The Applicant's friend gave evidence that he had known the Applicant for five or six years and that he had come to know the Applicant when the Applicant had a retail liquor shop business.  He socialised with the Applicant and regarded him as one of his best friends.  He was also a member of the Sri Lankan Tamil community.  He confirmed the Applicant's evidence that most marriages in their community were arranged and that separation and divorce of a parent would affect a child's marriage prospects. 

2. The Applicant's friend also told the Tribunal that he had not seen the Applicant and his wife together in public during the last two years.  In response to whether the Applicant had ever discussed his health problems with him, the Applicant's friend said "He is okay.  He, the only problem is that because of these family problems he is not a happy man like before."

3. The Tribunal asked Ms Fahey for a memorandum that was referred in the T documents at T29 and which was also referred to in the authorised review officer's letter to the Applicant.  At page 115 of the T documents, it is noted that "It is clear the information in the memorandum has come from (the Applicant's) wife."  Ms Fahey was told that the memorandum could not be located and asked that the Tribunal disregard any conclusion in the papers that may have been drawn from it.
   TRIBUNAL'S CONSIDERATION

4. The Tribunal considered all the evidence, written submissions made on behalf of the parties, case law and legislation in coming to a decision regarding the Applicant's situation and, it not being in dispute that he was legally married, whether he was "living separately and apart on a permanent or indefinite basis" from his wife pursuant to subsection 4 (2) of the Act.

5. In particular, the cases of Staunton – Smith v Secretary of Department of Social Security (1991) 25 ALD 27 and Lambe v Director-General of Social Services (1981) 4 ALD 362 were cited as authority that all the facts of the relationship need to be considered and that financial support is important but not necessarily a crucial consideration, in characterizing the nature of a relationship between two people. The Applicant's solicitor also cited Lynham v Director-General of Social Security (1983) 52 ALR 128 where it was submitted, introduced a peer group test. It was contended that the Tribunal must take into account what is the norm for the peer group of the Applicant. In this instance, the Tamil community.

6. The Tribunal noted the Applicant gave evidence of issues and responded to questions which were often both awkward and embarrassing. The Applicant's responses were not always direct and even allowing for cultural differences, the Tribunal was inclined to the view that his answers were obfuscation.  There was also some evidence which contradicted evidence given at the SSAT.

7. Sub-section 4(3) of the Act provides that in forming an opinion about the relationship of two people for the purposes of paragraph (2)(a), regard is to be had 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;"

8. The Tribunal finds that upon his evidence the Applicant and his wife jointly owned their residential property and that at least from the time of his claim for age pension on 26 May 2000 until about May 2001, they also jointly owned an investment unit.  They had joint liability for the investment property loan, firstly to the Commonwealth Bank and then to the ANZ Bank.  The ANZ loan liability existed at the time of his claim for age pension on 26 May 2000 and by reason of the deficiency upon sale of the investment unit, continued at the time of the hearing before the Tribunal.  That liability now attaches to their joint residential property.  The Tribunal is satisfied that the criteria (a)(i) applies to the Applicant. 

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

9. The evidence was that the estimated value of the Applicant and his wife's residential property was $600,000.00 and that he had not pursued a property settlement with his wife because it meant the house would have to be sold.  He was not keen to sell it because of real estate market considerations and amongst other things, it was going to cost him "capital loss".  The Tribunal did not accept the submissions on behalf of the Applicant that it took time to adjust matrimonial property matters so that the Applicant's inaction should not be detrimental to his case.  The Tribunal noted the Applicant's evidence as to why he had not pursued a property settlement and considered those stated circumstances constituted a "significant pooling of resources" between the Applicant and his wife. 

   "(iii)any legal obligation owed by one person in respect of the other person;"

10. The Applicant stated that he appreciated the legal distinction between joint tenancy and tenants in common and that he understood his interest in their residential property would pass by survivorship to his wife if he pre-deceased her.  His wife was the beneficiary of his superannuation fund account in the event of his demise.  The Applicant had taken no steps to remove the corporation, of which his wife was a shareholder and office bearer, as trustee of the discretionary trust.  The Tribunal was satisfied that the Applicant's relationship with his wife as joint tenant owner and corporate officer holder established criteria (a)(iii). 

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

11. As found by the SSAT, there is allocation of separate financial responsibilities in respect of amenities enjoyed by the Applicant, his wife and their sons. The Applicant paid the council and water rates on their residential property. The registration of the motor vehicle used by their 28-year-old student son was paid by the Applicant.  It appeared to the Tribunal that the son was in some tangible way dependent upon the Applicant and his wife for support.

    "(b)    the nature of the household, including
    (i) any joint responsibility for providing care or support for children;"

12. The Applicant and his wife provide accommodation for their adult sons.  As recorded at paragraph 39, the Tribunal finds there is also joint support for their adult student son.

    "(ii) the living arrangements of the people;"

13. The Applicant's evidence was that since 23 September 1999 he slept in the downstairs guest room and generally occupied the downstairs area of the residence.  The Applicant that his wife and sons use the downstairs kitchen.  At other times, his wife and sons moved through the downstairs area, for example to use the laundry. There was evidence that the adult sons relayed communications between the Applicant and his wife.  There was evidence that the Applicant's wife took and wrote notes of telephone messages for the Applicant (Exhibit A5). 

14. It was put in submissions on behalf of the Applicant, and not in evidence, that while the Applicant lives where he is, his sons see him and visit with him after having dinner with their mother.  That contact was put forward as an important aspect of his relationship which he would not have if he lived elsewhere. The Tribunal was satisfied that having regard to the evidence that the living arrangements were those of a couple.

    "(iii)   the basis on which responsibility for housework is distributed;"

15. Relying on the evidence of the Applicant, the Tribunal finds he was responsible for the garden at their residence, however there was no other evidence as to housework.

    "(c)     the social aspects of the relationship, including:
              (i) whether the people hold themselves out as married to each other;"

16. The Tribunal was not satisfied that the Applicant held himself out as being separated from his wife.  His evidence was that he did not hold himself out as living separate and apart form his wife within their community.  The Tribunal was asked to accept that the Applicant did not hold himself as out as living separately and apart because of his cultural and community differences.  While the Tribunal must certainly consider evidence such as cultural and community differences, the Tribunal did not consider it could give such differences more weight than the legislative criteria.   On balance, the evidence that the Applicant gave in paragraph 28 concerning disclosure to friends outside his community was equivocal in that he referred to quarrels and problems.   The Tribunal was satisfied that the Applicant did not hold himself out as other than married to his wife.

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

17. When the Applicant's friend had visited the Applicant at his residence during the last two years or so, he stated that the Applicant's wife " … was also not talking to me more friendly as she used to" (Exhibit A3) and that she was not very happy when he visited.  In regards to the evidence of the Applicant's friend, the Tribunal took into account the decision in Re Bagy and Secretary to Department of Social Security (1993) 30 ALD 331 and Re Smith and Secretary to Department of Social Security (1985) 7 ALN 371.  In Smith (supra), the Tribunal stated (page N373):

    "Where subjective considerations play so large a part, corroboration becomes highly desirable. Yet it is only an aid to proof."

In Bagy (supra), Senior Member Dwyer also noted that:

"... in such matters corroboration though not essential, is an aid to proof and also influences the weight to be given to particular findings."

1. The Tribunal was not satisfied that the evidence of the Applicant's friend aided corroboration of the Applicant's case.  The Applicant's friend met the wife during the past two years and his best evidence was that she seemed not as friendly.  He also gave evidence that the Applicant had not mentioned that he had problems in his marriage earlier than about two years ago.  The Applicant's evidence to the SSAT and the Tribunal was that there had been longstanding problems.  As well the Tribunal noted that although the Applicant's friend considered he was a close friend of the Applicant, he had not been told of the Applicant's health problems.  On balance, the Tribunal was not satisfied that friends and regular acquaintances of the Applicant knew him to live separately and apart from his wife.

   "(d)     any sexual relationship between the people;

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

2. The Tribunal accepted the SSAT findings that there was no sexual relationship between the Applicant and his wife.

3. The Tribunal accepts also that the relationship between the Applicant and his wife is poor.  He stated he would not care for her if she was sick. 

4. The Applicant had obtained legal advice about property settlement from solicitor friends.  That appeared contrary to the finding of the SSAT at paragraph 31.  It appeared to the Tribunal that from his evidence, the Applicant was well aware of the implications of a matrimonial property settlement and contested proceedings. 
   Conclusion

5. Based on the above findings, the Tribunal concludes that the Applicant was not living separately and apart and, being legally married, he is a member of a couple, pursuant to sub-section 4(2)(a) of the Act.

6. Accordingly, the decision under review is affirmed.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Shead, Member.

Signed: Raina Savage           .....................................................................................
  Associate

Date/s of Hearing  17 May 2001
Date of Decision  23 November 2001       
Solicitor for the Applicant         Ms S Clarke
Solicitor for the Respondent    Ms S Fahey