RSQ NOT FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA } WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WAG 127 of 1986 GENERAL DIVISION ) BETWEEN ; ELSA MODANO LAMBRICHE CHAMBERS Applicant AND: THE SECRETARY, DEPARTMENT OF SOCIAL SECURITY Respondent MINUTE OF ORDER JUDGES MAKING ORDER: FOX, JENKINSON AND WILCOX JJ. DATE _OF ORDER: 21 MAY 1987 WHERE MADE: PERTH. THE COURT ORDERS THAT: l. The appeal be dismissed. ote: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA } WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WAG 127 of 1986 GENERAL DIVISION } BETWEEN : ELSA _MODANO_ LAMBRICHE CHAMBERS Applicant AND: THE SECRETARY, DEPARTMENT OF SOCIAL SECURITY Respondent CORAM: FOX, JENKINSON AND WILCOX JJ. DATE: 21 MAY 1987 REASONS FOR JUDGMENT THE COURT: This is an appeal against a decision of the Administrative Appeals Tribunal affirming a decision of the Secretary of the Department of Social Security on the question whether the applicant should be regarded, for the purpose of computing social security payments, as a married person or an unmarried person. There was some initial confusion before the Tribunal as to the nature of the benefits paid to Mrs Chambers, whose computation is in issue, at the relevant time: 27 November 1984 to 1 April 1985. But it was eventually agreed that the relevant benefit was the unemployment benefit. Unemployment benefits are pavable under Part VII of the Social Security Act 1947. Section 112, which is contained within that Part, stipulates rates of benefit. which rates distinguish between married persons and unmarried persons. At the time taken as being relevant, s.112(4) provided that, where the spouse of a married person "is living apart from the married person in pursuance of a separation agreement in writing or of a decree, judgment or order of a court or in such circumstances that the Secretary 15 satisfied that the separation is likely to be permanent," the rate of the unemployment benefit should be increased to the unmarried rate. If the relevant time was taken as being that which followed the amendment of sub-section (4), it is clear that there would be no arquable basis for the claim. The case for the applicant, before the Tribunal, was that she was in fact living apart from her husband, so that she was entitled to the unmarried rate. Mrs Chambers conceded that she and her husband resided in the same premises during the relevant period but she contended that they lived separate lives. Evidence was given by both Mrs Chambers and her husband, who was called on behalf of the respondent, as to their way of life and as to various activities which they carried out together or separately. In the end the Tribunal concluded that the marital relationship had not been severed, with the consequence that it was obliged to reject the submission that Mrs Chambers was "living apart" from her husband. Three grounds were taken in the Notice of Appeal. The farst ground was that the Tribunal erred in hearing evidence from Mr Chambers because, at the date of the hearing, he "was suffering from Fuque and was experiencing memory loss". As to this ground it is enough to say that there was no evidence that, at the date of hearing, Mr Chambers had any incapacity which might have rendered his evidence unreliable. No objection was taken to his aqiving evidence generally, mor was any objection taken in respect of any particular part of it. The members of the Tribunal saw and heard Mr Chambers and were in a position to evaluate his evidence which, in any case, did not contradict the evidence of Mrs Chambers in any material respect. The second ground of appeal was that the Tribunal erred in giving undue weight to Mr Chamber's evidence. However, the weight to be given to the evidence was a question of fact for the Tribunal, not a question of law for this Court. Finally, it was said that the Tribunal erred in law in that 1t applied the wrong criteria in reaching its decision. In argument before us Mrs Chambers, who appeared in person, agreed with each of the factual conclusions stated by the Tribunal. Those conclusions were all made in connection with matters relevant to the ultimate findings which the Tribunal had to make. Some cut one way, some the other. But we do not think that any were irrelevant or that the Tribunal erred in its selection of criteria. The ultimate determination made by the Tribunal was one which was, upon the evidence, clearly open to it. Because the applicant lacked leqal representation, we have examined the Tribunal's decision with more than usual care. But we are unable to detect any leqal error in the decision. Indeed we would go further and say that, upon the facts found by the Tribunal, that decision was inescapable. The appeal should be dismissed. I certify that this and the three (3) preceding pages are a true copy of the Reasons for Judame the Court. Assogiat — * Dated: 22 May 1987 Appearance and Solicitor for the applicant: In Person Counsel For the respondent: Ms. H Riley Solicitor for the respondent: Australian Government Solicitor Date of Hearing: 18 May 1987 Date jiudament delivered: 21 May 1987