"Where the Tribunal gives in writing the reasons for its

decision, those reasons shall include its findings on

material questions of fact and a reference to the evidence

or other material on which those findings were based."

4. A substantial failure of a Tribunal to state reasons for a decision can constitute an error of law: Dornan v Riordan (1990) 24 FCR 564 at 573. In Australian Telecommunications Commission v Barker (an unreported decision delivered on 7 December 1990) the Full Court noted that the Tribunal had made a positive finding that the applicant's injury was not work related. But the Court went on to say:

"The Tribunal failed to state reasons for that conclusion, to expose

its reasoning process. It is an error of law for a tribunal, which

is bound to state reasons for its decision, to fail to express

findings and reasons for decision adequate for the purpose of

enabling a proper understanding of the basis on which a decision has

been reached."

5. It is crucial for the applicant and her legal advisers and this court to know the matters which the Tribunal took into account when arriving at its decision. This statement accords with the view expressed by a Tribunal over which Fisher J. presided in Re Palmer and Minister for the Capital Territory (1978-79) 23 ALR 196 at 209. That case dealt with s.28 of the AAT Act and the requirement that a decision maker "furnish to the applicant a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision ..." The language is not materially different from that contained in sub-s.43(2B) and the views of the Tribunal in Re Palmer apply, in my opinion, to the provisions of sub-s.43(2B).

6. In March, 1989, when she returned with Phillip to live in her husband's house, the applicant's entitlement to a sole parent's pension derived from the amendments to the Social Security Act 1947 (Cth) ("the Act") that had been made by Act No.133 of 1988, the Social Security Legislation Amendment Act, the relevant provisions of which had come into force earlier that month on 1 March 1989. In particular, s.44 was repealed and the new section stated that "a single person" with a "qualifying child" would be qualified to receive such a pension subject to the existence of certain other conditions. The term "single person" was given an expanded definition in the new sub-s.43(1) of the Act; if Mrs Staunton-Smith was to be properly regarded, in March 1989, as a "single person" for the purposes of the legislation, it was because she was covered by that part of the definition that extended the meaning of a "single person" to include:

"(c) a married person who is living separately and apart

from... her spouse;" (Emphasis added)

7. That part of the definition and its presumed application to Mrs Staunton-Smith then dove-tailed in with the definition of "married person" that remained in sub-s.3(1):-

"'Married person' includes a de facto spouse but does not

include -

(a) a legally married person (not being a de facto

spouse) who is living separately and apart from

the spouse of the person on a permanent basis;

..." (Emphasis added)

8. Prior to 1 March 1989, Mrs Staunton-Smith had enjoyed a widow's pension under the repealed s.44. The word "widow" was also expansively defined and, presumably, Mrs Staunton-Smith came within the limb of "a deserted wife". It is of interest to note that in the repealed legislation there was specifically excluded from the definition of "widow" a "woman who is living with a man as his wife on a bona fide domestic basis, although not legally married to him" (Emphasis added). As Mrs Staunton-Smith remained legally married to Mr Staunton-Smith that exclusionary part of the definition of the word "widow" would not have played any part in assessing her entitlement to a widow's pension. Nevertheless, the Tribunal frequently referred to the expression "bona fide domestic basis" during the course of its reasons. The question of what does or does not amount to a "bona fide domestic basis" has been discussed in several decisions of the Tribunal; one such case to which the Tribunal made special reference in its reasons was the decision in Re Tang and Director-General of Social Services (1981) 3 ALN No.49. Reliance on that case may explain why the Tribunal erroneously referred to the language of the repealed legislation in paragraph 22 of its reasons:

"22. The Tribunal is satisfied and so finds that the

applicant and Mr Staunton-Smith are residing

under the same roof on a bona fide domestic

basis, and that the applicant satisfied the

criteria of sub-s.3(1) of the Act and should

therefore be classed as a 'married person'.

Having found the applicant to be a 'married

woman' living in a bona fide domestic basis with

Mr Staunton-Smith, the Tribunal does not need to

consider whether or not the applicant's Sole

Parent's Pension should be cancelled pursuant to

sub-ss.43(1) and 44(1)(a) of the Act."

(Emphasis added)

9. The definition of "married woman" (which was not affected by the amendments that came into force on 1 March 1989) includes a de facto wife but excludes a lawful wife who is living separately and apart; it makes no reference to residence on a bona fide domestic basis, an expression that is still to be found in the definition of "de facto" spouse in sub-s.3(1) -

"'de facto spouse' means a person who is living with

another person of the opposite sex as the spouse of that

other person on a bona fide domestic basis although not

legally married to that other person." (Emphasis added)

10. Thus the task of the Tribunal, in its review of Mrs Staunton-Smith's circumstances was, as it stated in paragraph 6 of its reasons, to inquire whether she was living separately and apart from Mr Staunton-Smith; if the Tribunal was satisfied that she was not, then she did not classify as a "single person" and hence she was not entitled to a sole parent's pension. But the Tribunal went about its task by assessing the circumstances of Mrs Staunton-Smith as if she was allegedly living in a de facto relationship with Mr Staunton-Smith. Instead of inquiring whether Mrs Staunton-Smith was living separately and apart - looking for indicators that might have pointed in that direction - the Tribunal inquired whether she was living with Mr Staunton-Smith on a bona fide domestic basis. The Tribunal therefore looked for indicators that suggested a "living together" and so placed the wrong emphasis on its enquiry. In my opinion, the Tribunal erred by adopting a test or a standard that was reserved for couples who were allegedly living together in a de facto union. It is, of course, possible that in a given situation, the facts that would establish that a man and a woman are not living separately and apart would also establish that they are living together as man and wife on a bona fide domestic basis. Nevertheless, the terms are not interchangeable.

11. Notwithstanding what has been said, as the terminology that was used in paragraph 22 of the Tribunal's reasons was not the subject of comment by counsel during argument, I do not propose to explore further the difference in the language of the legislation any further. However, for other reasons, I have determined that it is necessary to set aside the Tribunal's decision and the errors revealed in paragraph 22 was a factor that assisted me in coming to that decision.

12. It is now necessary to examine the reasons of the Tribunal in some detail in order to explain why I have been compelled to conclude that the Tribunal failed to comply with the provisions of sub-s.43(2B) of the AAT Act; I have concluded that it omitted to make certain findings in its reasons on material questions of fact even though, in most cases, it referred to the evidence upon which those findings could have been made.

13. In paragraphs 1 to 6 of its reasons the Tribunal referred to the nature of the application before it, the history of the matter and the nature of the benefit that Mrs Staunton-Smith sought to have restored. Paragraphs 7 and 8, which are set out below contain, first, some findings of fact and then a statement of agreed facts:-

"7. Evidence was presented which established that

the applicant was married to Mr Staunton-Smith

on 6 August 1980, at which time she had three

children from a previous marriage, including a

child, Phillip, then two years old. Phillip is

a Down's Syndrome child and requires full time

care and attention.

The condition of this child was known to Mr

Staunton-Smith at the time of the marriage. At

the time of the applicant's marriage to Mr

Staunton-Smith, her daughter had left home, and

two sons remained in the home. The applicant

suffers from Addison's Disease which causes her

to collapse quite frequently and weakens her

and, from time to time, necessitates her staying

in hospital, during which times she is unable to

care for Phillip.

8. These aspects of the situation enable the

significance of the Statement of Agreed Facts

(Exhibit R1), submitted by Mr Taylor with the

consent of Mr Cruickshank, to be appreciated.

The Statement of Agreed Facts is as follows:

'STATEMENT OF AGREED FACTS

1. Mrs Lynn Staunton-Smith and her husband Mr

Paul Staunton-Smith have lived at 61 Mortimer

Street Whyalla Stuart since 23 March 1989 and

have continued to do so except for a short

period during the early days of September 1989.

2. Mr and Mrs Staunton-Smith have been married

since 6 August 1980. There is no current

intention to seek a divorce.

3. The restraining order which Mrs Staunton-Smith

took out against her husband in 1984,

restrains Mr Staunton-Smith from "threatening,

attempting to assault, assaulting or in any

manner causing personal injury to Linda (sic)

Janet Staunton-Smith". The restraining order

does not prevent them residing in the same house.

4. There is no sexual relationship between Mr

and Mrs Staunton-Smith. They go out together

only occasionally. When Mr Staunton-Smith is

working day shift, they often sit and watch

television together at night.

5. On most of the occasions that Mrs Staunton-Smith

has had to be admitted to hospital, Mr

Staunton-Smith has taken responsibility for and

cared for Phillip Staunton-Smith.

6. Mrs Staunton-Smith moved into her husband's

house on 23 March 1989. She moved back as a

matter of convenience as Mr Staunton-Smith would

allow her to live there and would assist her in

caring for Phillip (preparing meals for Phillip,

helping him to shower and getting him ready for

bed). When Mrs Staunton-Smith is unwell Mr

Staunton-Smith helps out by preparing meals for

her.

7. Since Mrs Staunton-Smith moved in with her

husband she has made one payment towards

electricity. Since her pension was cancelled Mr

Staunton-Smith has met all rent and electricity

expenses.

8. Mr and Mrs Staunton-Smith jointly own a boat

and car (dependent on rights on a property claim

made under the Family Law Act).'"

14. Paragraph 9 notes that the respondent did not concede that Mr and Mrs Staunton-Smith had lived separately and apart between 1981 and 1989 but that proposition was seemingly rejected by the Tribunal because of its references, in paragraphs 5 and 21, to their "separation".

15. In paragraph 10 of its reasons, the Tribunal found that the relationship that "now exists" between the applicant and Mr Staunton-Smith was dominated by two factors; first, by the need to care for Phillip and, secondly, by the applicant's impecunious situation and resulting financial reliance of Mr Staunton-Smith. Both of these factors are very important in assessing the relationship between any two people, although it was probably of more importance to make the assessment unimpeded by the consequences of the withdrawal of her pension. It is quite clear that in 1989 and in 1990 (when the Tribunal heard evidence) the situation concerning Phillip was unchanged - they shared joint parenting responsibilities. However, the withdrawal of her pension - not any personal relationship - caused a material shift in the financial circumstances of Mr and Mrs Staunton-Smith. The loss of her pension created the need for Mr Staunton-Smith to give her financial assistance; his concern for Phillip explained why he was prepared to meet that need. The Tribunal did not consider whether, and to what extent, Mr Staunton-Smith would have cared for her or assisted her financially if she had continued to receive her pension.

16. In paragraph 11 of its reasons, the Tribunal quoted at length, passages from the evidence of Mr Staunton-Smith. Several of the subject-matters in the quoted passages were of great importance in determining whether these two people, although living under the same roof, were nevertheless living separately and apart. For example Mr Staunton-Smith said that they did not share the house: "It is like two separate houses"; he maintained that they led separate social lives: "It is the same as if I had a boarder living in the house, exactly the same". But the Tribunal expressed no view on this evidence; it neither said that it accepted it nor that it rejected it. In addition to the agreed fact that the parties did not have a sexual relationship, the Tribunal also had before it evidence that there was little or no social relationship. Those factors in combination (that is, the absence of a sexual and a social relationship) might be thought to weigh in favour of a finding that the parties were living separately and apart. If the Tribunal did not accept Mr Staunton-Smith's evidence about the absence of a social relationship it should have said so and stated its reasons for rejecting the evidence. If it accepted his evidence, it should have explained why it considered it to be (presumably) unimportant in reaching the Tribunal's conclusion that they were not living separately and apart: and the Tribunal should have dealt with the agreed absence of a sexual relationship in the same manner.

17. Paragraph 12 contains passages from Mrs Staunton-Smith's evidence that dealt with the relationship between Mr Staunton-Smith and Phillip. Although the evidence was referred to without comment, it supports the earlier finding in paragraph 10 that the relationship between Mr and Mrs Staunton-Smith was dominated by their mutual concern for Phillip.

18. Paragraphs 13 to 16 of the Tribunal's reasons contain a summary of the arguments that were advanced by the counsel for the parties; paragraph 17 notes the relevant legislation and the definition of "single person" and paragraph 18 lists by name and reference ten cases which the Tribunal classified as containing discussions about "(t)he issues to be considered in determining whether or not the applicant is living with Mr Staunton-Smith on a bona fide domestic basis..." Two only of those cases were, however, the subject of any further comment.

19. In paragraph 19 of its reasons, the Tribunal made particular reference to Tang's case, (supra) listing the ten subject matters that had been identified in that case by counsel for the applicant as matters against which a relationship should be evaluated. In Tang's case the Tribunal had said that it found the list "helpful in a general way" but it did not endorse it "as being either a necessary or an exhaustive list". I consider, with respect, that those comments were appropriate. Each of the ten matters touches upon an important subject but they were compiled for the purpose of determining whether the applicant in Tang's case was "a woman who (was) living with a man as his wife on a bona fide domestic basis although not legally married to him". As the test to be applied in this case in whether Mrs Staunton-Smith was living separately and apart from Mr Staunton-Smith, I would prefer to have regard to the subject matters that were mentioned in Tang's case, but to recast them in the following fashion:

(1) What are the living, eating and sleeping arrangements in the

household between the applicant and the other party?

(2) Do the applicant and the other party have a sexual relationship?

(3) Do the applicant and the other party have a social relationship?

(4) What third parties (particularly children) are residing in the

house and what is the relationship between each third party and

the applicant and the other party?

(5) What are the financial arrangements between the applicant and the

other party? For example, are resources within the household

pooled and household expenses shared?

(6) Do the applicant and the other party hold themselves out as living

(7) Do the applicant and the other party have a genuine belief that

(8) Does the existing relationship give rise to any moral, social or

legal rights between the applicant and the other party?

(9) Finally, what is the relationship between the applicant and the

other party and does it contain any degree of permanence?

20. 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.

21. It should, of course, be clearly understood that no Tribunal is required, in every case, to compile something in the nature of a checklist and then to proceed slavishly to comment on each item in the list. The personal circumstances of people vary substantially. The responsibility of the Tribunal is to extract from the evidence and other material that is before it those items of information that are properly classified as material to its deliberations. If the Tribunal performs that task it will only address those issues that are personal to the decision that is under review; it will then be able to state its findings on material questions of fact with appropriate references to the evidence or other material on which those findings were based.

22. Two of the submissions that were made on behalf of the applicant to the Tribunal, although noted by the Tribunal, were not the subject of further comment; it was submitted that Mr and Mrs Staunton-Smith did not hold themselves out as being married nor did they believe that their relationship was that of man and wife. Both issues are important. Although the Tribunal correctly noted in paragraph 20 of its reasons that the "several components" of any relationship are to be considered in their totality, it would seem that the Tribunal, in failing to comment on the conduct and the subjective views of the parties and in failing to make any findings about their social and sexual relationships overlooked its own strictures. I have come to this conclusion notwithstanding that in paragraph 20 the Tribunal said:

"It is in the sense of the totality of the relationship that

the Tribunal rests most easily with a finding that the

applicant is in a domestic relationship which has particular

benefits for herself and less for her husband and involves a

degree of sharing the different aspects of their lives."

23. Thereafter, in paragraphs 21 and 22, the Tribunal proceeds to state its conclusions. It had found that Mrs Staunton-Smith initiated the relationship with her husband because of her "desperate need of shelter and assistance in caring for her son". It then referred to the relationship as being "of a supportive nature and based on some financial, domestic and inter-personal co-operation". It found that there was "a commitment between the couple" adding that "the applicant derives comfort and support from living under the same roof as Mr Staunton-Smith".

24. I have no difficulty with those findings in the sense that they were findings that could have been made on the acceptance of certain of the evidence that was before the Tribunal. But what of the parties' social relationship, their sexual relationship, the manner in which they held themselves out to the public and their friends and their subjective views. These matters were matters of importance that should have been addressed in some detail. In terms of sub-s.43(2B) of the AAT Act they were material questions of fact and the Tribunal should have stated its findings with respect to them.

25. During the course of her submissions, Mrs Singh, counsel for the respondent, pointed to several passages in the evidence, which, so she argued, supported a conclusion that Mr and Mrs Staunton-Smith were not living separately and apart. For example, she pointed to Mrs Staunton-Smith's answer that she had "not worried" about a divorce; that, so it was said was an indicator of permanence in their relationship. There was also evidence of pooling of resources, common ownership of some assets and joint shopping expeditions. I agree that these matters could be matters of importance in deciding whether these two people were or were not living separately and apart in and subsequent to March 1989. But far from supporting the respondent's case, they rebound to the favour of the applicant in these proceedings because, as matters of importance, they should have been, but were not, the subject of findings by the Tribunal in its reasons.

26. Counsel for the applicant therefore argued that an examination of the Tribunal's reasons exposed its failure to take into account all relevant and material facets of the inter-personal relationship that existed between Mr and Mrs Staunton-Smith as and from her return to his home in March 1989. I have no difficulty in accepting the proposition that all such facets should be examined as part of the composite whole. Although the cases referred to hereafter were decided with respect to alleged de facto unions and the consequential issue of whether one person was living with another person of the opposite sex "on a bona fide domestic basis", the earlier authorities are of assistance in a consideration of the current legislation. So it is that in Lambe v Director-General of Social Services [1981] FCA 171; (1981-82) 38 ALR 405 the Full Court said:-

"We agree with the Tribunal that in order to determine

whether the appellant was living with Foxwell as his wife

'all facets of the inter-personal relationship' of the two

persons need to be taken into account. We also agree that

the question of the financial support which Foxwell provides

is an important, although not necessarily crucial,

consideration, but is only one of a number of relevant

matters which the Tribunal should take into account in

characterizing, as required by the definition, the nature of

the relationship between the appellant and Foxwell." (p 413)

27. Thus not only did the Full Court emphasise the need to consider "all facets of the inter-personal relationship", it rejected the proposition that the question of financial support was, in any sense, paramount, describing it as "important" but as "only one of a number of relevant matters".

28. The approach by the Full Court in Lambe's case was followed by Fitzgerald J. in Lynam v Director-General of Social Security (1983-84) 52 ALR 128. In that case the male applicant jointly owned a house with Mrs C; they shared expenses equally until the applicant's unemployment benefit was cancelled because the Department considered that the applicant and Mrs C were living in a de facto union. The Tribunal had relied on the applicant's total financial dependence upon Mrs C and their joint ownership of the property as justification for a conclusion that there was a bond between them of a kind usually found in a marital relationship. The pre-eminence given by the Tribunal to these financial matters caused Fitzgerald J. to conclude, on the basis of Lambe's case, that there had been an error of law that required the matter to be referred to the Tribunal for re-examination.

"Financial arrangements cannot be taken in isolation and

considered of particular importance in determining the

nature of relationship. Their materiality, like each of the

other elements of the relationship, stems from the impact

which they have as part of an overall situation. 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." (p 131)

30. With respect I endorse those remarks. Fitzgerald J. also took time to warn of the dangers of being misled by proven financial dependence. Like the present case, there was evidence in Lynam's case of no sexual or social relationship; the parties remained friends but the relationship was strained because he could not afford to move out and she could not afford to buy his interest in the house; she felt that she had no option but to support him. His Honour said:-

"It is possible to imagine a marriage with the

characteristics revealed by the evidence before the Tribunal

in this case. It does not follow that that is the only

conclusion. It goes too far to assert or assume that which

might otherwise be regarded as merely charity or necessity

is, as between unrelated members of the opposite sex, a sure

or safe indicator of the existence of a special relationship

akin to marriage." (pp 131-132)

31. Re Kingston and Secretary, Department of Social Security (1983-86) 8 ALN N315 is an example of a careful assessment of all relevant factors and of the manner in which they should be assessed in their application to the man and woman whose circumstances are under scrutiny. The applicant, who was aged 80, had been in receipt of an age pension at the rate appropriate for a married man for at least 13 years because he was, and had been throughout that period, sharing accommodation with Mrs N. who was then aged 75. There was evidence that Mrs N had signed a statement many years before that she was living with him "as man and wife" and that on one occasion he had claimed an income tax deduction for her as his dependent spouse. The Tribunal acknowledged that their relationship had an undoubted quality of permanence and that each exhibited a willingness to physically care for the other in sickness and old age; both those facets are, of course, indicative of a marriage-like relationship. Referring to an unreported decision of a differently constituted Tribunal, the Tribunal in Kingston's case recognised that a man and a woman can make a commitment to live together (in the sense of sharing accommodation) - not because of marital, romantic or sexual reasons - but for reasons of finance or friendship or companionship.

32. I am of the opinion that 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. For example, in arriving at its decision, the Tribunal regarded it as a matter of significance that there was a supportive relationship existing between Mr and Mrs Staunton-Smith. I agree that normally that would be an indicator pointing to the conclusion that the parties were not living separately and apart. But in the particular circumstances of this case, did the Tribunal accept the evidence of both Mr and Mrs Staunton-Smith that during the period of their separation, he would, on occasions, stay at her home and care for her and her children when she was sick or in hospital? The question of the "weight" to be attached to that evidence would be, almost invariably, the province of the Tribunal. As Mason J. (as he then was) explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd. [1986] HCA 40; (1985-1986) 162 CLR 24 at p 41, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker and not the court to determine questions of weight. However, his Honour went on to explain that there are circumstances when "a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance". But his Honour preferred to reserve such a possibility to that decision which was "manifestly unreasonable" adding that:-

"... guidance may be found in the close analogy between

judicial review of administrative action and appellate

review of a judicial discretion. In the context of the

latter, it has been held that an appellate court may review

a discretionary judgment that has failed to give proper

weight to a particular matter, but it will be slow to do so

because a mere preference for a different result will not

suffice: Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, at p 519:

Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 at pp 519-520, 534,

537-538; Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605 at pp 614-

615,622. So too in the context of administrative law, a

court should proceed with caution when reviewing an

administrative decision on the ground that it does not give

proper weight to relevant factors, lest it exceed its

supervisory role by reviewing the decision on its merits."

(p 42)

33. Thus it is not sufficient for an applicant to complain that the Tribunal has given insufficient weight to a relevant fact or too much weight to an inconsequential matter; an applicant must go further and establish that the complaints with respect to "weight" are not only made out, but that they mean that the decision was manifestly unreasonable. I have mentioned this factor because, in my opinion, the failure by the Tribunal to mention Mr Staunton-Smith's supportive conduct during the period of their separation goes beyond the question of "weight". If that evidence had been accepted by the Tribunal it might well have qualified as evidence supporting a finding on a material question of fact: viz:- that the supportive relationship that existed subsequent to her return had less significance because of the existence of a somewhat similar relationship during the period of their separation.

34. In Re Tilley and Secretary Department of Social Security (1987-88) 15 ALD 77, the Tribunal comprised the same three members who constituted the Tribunal in these proceedings. The facts in that case raised the oft-recurring problem of the "housekeeper" relationship. The Department had withdrawn the applicant's widow's pension when she returned with her child of her second marriage to housekeep for her first husband. The Tribunal accepted that there was no sexual relationship, virtually no social relationship and that a housekeeping arrangement did in fact exist. The Tribunal also accepted that the couple did not present themselves to other people as a married couple and that she was known as his housekeeper. With respect, the Tribunal correctly went about its task in Tilley's case. It listed each factor that it considered material and stated its findings and, where needed, its reasons in respect of those findings. It pertinently pointed out that some aspects of their relationship differed very little from that during their married life, but added:-

"Although the domestic arrangements are similar to those of

a marriage in the traditional sense, they are also

consistent with a housekeeper arrangement." (p 80)

Re Stoilkovic and Secretary, Department of Social Security (1985-1986) 9 ALN N33 and Re Ivovic and Director-General of Social Security (an unreported decision of the Tribunal delivered on 17 September 1984) are both examples of the difficulties confronted by the Tribunal in this type of case. In both reviews the Tribunal concluded, after assessing the whole of the relevant material, that the relevant relationship fell within the range of relationships which meant, in Stoilkovic that the parties should be regarded as if they were married and in Ivovic that the parties should continue to be treated as married notwithstanding that they had ceased to have a sexual union and notwithstanding that they regarded themselves as living separately and apart, albeit under the same roof. Of interest to this case (in its application to the concern that Mr and Mrs Staunton-Smith show for Phillip) it was said in Ivovic:-

"The marriage, albeit an unhappy marriage, is still a

marriage, with many of the indicia of a marriage. The husband

and wife feel affection for each other, and form a family

unit together with their child. Even if their staying

together is very much because of the child, that, in itself,

is one of the indicia of a marriage."

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

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

"The parties to a marriage may be held to have separated and

to have lived separately and apart notwithstanding that they

have continued to reside in the same residence or that

either party has rendered some household services to the

other."

37. Addressing the subject of "separation" Watson J. said in In the Marriage of Todd (No.2) (1976) 9 ALR 401:-

"In my view 'separation' means more than physical separation

- it involves the destruction of the marital relationship

(the consortium vitae). Separation can only occur in the

sense used by the Act where one or both of the spouses form

the intention to sever or not to resume the marital

relationship and act on that intention; or, alternatively,

act as if the marital relationship has been severed. What

comprises the marital relationship for each couple will

vary. Marriage involves many elements, some or all of which

may be present in a particular marriage - elements such as

dwelling under the same roof, sexual intercourse, mutual

society and protection, recognition of the existence of the

marriage by both spouses in public and private

relationships.

When it is asserted that a separation has taken place it may

be necessary to examine and contrast the state of the

marital relationship before and after the alleged

separation. Whether there has been a separation will be a

question of fact to be determined in each case." (p 403)

38. The Full Court of the Family Court (of which Watson J. was a member) expressed in In the Marriage of Pavey (1976) 10 ALR 259 its general agreement with that statement of the law with two qualifications. It said that it was appropriate to use the word "breakdown" instead of "destruction" (p 262) and it considered "the nurture and support of the children of the marriage" as a constituent element of the marital relationship. (p 263)

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

40. It is important that a Court, when considering the reasons of a Tribunal, "approach its task sensibly and in a balanced way": Politis v Federal Commissioner of Taxation (1988) 88 ATC 5029 at p 5032 per Lockhart J. In Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 Sheppard J. when speaking of the precursor to sub-s.43(2B) said that all that was required was "substantial compliance" (at p 157). These and other authorities on this subject have recently been collected by von Doussa J. in his unreported judgment in McAuliffe v Secretary, Department of Social Security (judgment delivered 21 June 1991). Furthermore, it does not follow, as a matter of course, that the Tribunal's decision must be set aside once an error of law has been demonstrated; there remains a residual discretion in the appellate court (sub-s.44(4) of the AAT Act which provides that the Court "shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision; see also McAuliffe's case p 25). These matters have been addressed because of a natural reluctance to interfere with the decision of a fact-finding Tribunal. However, I am constrained to come to the conclusion that the reasoning process in this matter must be classified as deficient to such a degree that the intervention of this Court is justified.

41. Mrs Singh submitted that the reasons of the Tribunal were sufficient as was the basis of its reasoning; alternatively she said that a reading of the reasons in their totality allowed one to infer, with sufficient ease and clarity, the reasoning process that had been adopted by the Tribunal. As I understood her argument, it meant, for example, that the reference to the evidence of Mr Staunton-Smith in which he said that there was no social relationship existing between him and Mrs Staunton-Smith, amounted to the Tribunal having proper regard to that passage of the evidence. I do not believe that such a speculative proposition can be accepted. Its obvious deficiency is that one is left to wonder in what manner proper regard was given to it. Furthermore, the mere reference to a passage of evidence does not mean, without more, that the Tribunal accepted it.

42. Putting to one side, the failure to address the question of living separately and apart, the Tribunal's decision, as stated in paragraph 22 of its reasons was that "the applicant and Mr Staunton-Smith are residing under the same roof on a bona fide domestic basis". The findings on material questions of fact that the Tribunal made in coming to that decision were

(1) the totality of the relationship;

(2) the existence of a domestic relationship which was initiated by

the applicant;

(3) the applicant's desperate need of shelter and assistance in

caring for her son;

(4) the supportive nature of the relationship "based on some

financial, domestic and inter-personal co-operation";

(5) the parties commitment to each other,

(6) the comfort and support derived by the applicant from living under

the same roof as Mr Staunton-Smith to whom she is still legally

married,

(7) neither party having a strong desire to end their "current

situation" and "their lifestyle" being "similar to that of man and

wife"; and

(8) their strong and mutual concern for Phillip.

43. Each of those matters was a proper subject or facet of the relationship to be taken into account as part of the total picture. Furthermore, there was evidence before the Tribunal, most, if not all of which was referred to, that permitted it to make each such finding. Thus it could not be said that the Tribunal was manifestly unreasonable because of it taking into account matters that were wholly irrelevant. The problem lies in the opposite direction. Did the Tribunal have any, and if so what, regard to the following claims -

(1) That there was no sexual relationship;

(2) That there was virtually no social relationship.

(3) That the parties did not hold themselves out as being married.

(4) That the parties did not regard themselves as man and wife.

(5) That the applicant's financial dependence on Mr Staunton-Smith

was not a voluntary relationship borne out of love, friendship or

concern; it resulted directly from the withdrawal by the

Department of her social welfare benefits.

(6) That his willingness to care for her did not occur solely as a

result of their living under the same roof as from March 1989 -

there was evidence of similar conduct prior to date when they were

living separately and apart.

44. It remains possible that the Tribunal considered each of these matters and found that they were outweighed in the final analysis by the factors that were listed in its reasons; if the matters were less numerous and of less importance that might have been an inference that could have been drawn by this Court. It would be open to this Court to dismiss this appeal , notwithstanding perceived error, if the Court was otherwise satisfied that the Tribunal had reached the correct decision: Austin v Deputy Secretary, Attorney-General's Department (1986) 12 FCR 22 at pp 26-27. However, I feel that the collective force of these six matters warrant some degree of recognition in the reasoning process.

45. Accepting the evidence at face value, this is an unusual and difficult case. One the one hand, it could be argued that the assumed absence of a sexual and social relationship combined with a holding out and a belief that they are not, in fact, married, suggests that the parties should be regarded as living separately and apart. On the other hand, his willingness to join with her in caring for Phillip and in caring for her when she is sick, together with her financial dependence upon him could suggest, along with the other matters to which the Tribunal referred, that they are neither separate nor apart but are living together in a very close, supportive relationship. Unfortunately, the reasoning process lacks that detailed statement of all relevant findings together with appropriate reasons so that the applicant and the respondent may know, at the end of the day, in full and complete detail, the reasoning process that guided the Tribunal to its ultimate conclusion.

46. As a result, the appeal is allowed and the matter is remitted to the Tribunal for reconsideration in accordance with these reasons. I will hear counsel at a later date on consequential orders, including costs.