Gray and Defence Force Retirement and Death Benefits Authority
[2004] AATA 450
•4 May 2004
Administrative
Appeals
Tribunal
ORAL DECISION [2004] AATA 450
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2003/662
GENERAL ADMINISTRATIVE DIVISION ) Re Wendy Gray Applicant
And
Defence Force Retirement and Death Benefits Authority
Respondent
DECISION
Tribunal Senior Member Dwyer Date4 May 2004
PlaceMelbourne
Decision The Tribunal sets aside the decision under review. In substitution, the Tribunal decides that Mrs Gray is a “spouse who survives a deceased person” as defined in s 6B of the Defence Force Retirement and Death Benefits Act 1973 (“the Act”), and is entitled to a spouse’s pension under s 39 of the Act.
[sgd] Mrs Joan R Dwyer
Senior Member
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS – entitlement to spouse’s pension under s 39 Defence Force Retirement and Death Benefits Act 1973 – whether applicant is a spouse who survives a deceased person under s 6B – whether applicant and her husband at the time of his death had a marital relationship under s 6A – applicant’s husband moved interstate to extended family and to avoid “pokies” – evidence of depression and gambling addiction – finding that applicant and her husband had a continuing commitment to their marriage and each other and would have been living with each other but for gambling addiction and depression – separation due to depression and gambling problems an absence due to special circumstances under s6A(5) – decision under review set aside.
Defence Force Retirement and Death Benefits Act 1973, ss 6A, 6B, 39.
Re Beadle v Director-General of Social Security (1984) 6 ALD 1
Beadle v Director General of Social Security (1985) 60 ALR 225 at 229
Tulk v Tulk and Hoffmeyer v Hoffmeyer [1907] VLR 64 at 65REASONS FOR DECISION
4 May 2004 Senior Member Dwyer 1. This is an application for review of a decision, made 28 November 2001 by a person authorised by a delegate of the respondent, that Mrs Gray was not a “spouse who survives a deceased person” as defined in s 6B of the Defence Force Retirement and Death Benefits Act 1973 ("the Act"), and thus was not entitled to a spouse's pension under s 39 of the Act. The decision of 28 November 2001 was reconsidered and confirmed by the respondent in accordance with s 99(4) of the Act on 26 May 2003.
2. The issues before the Tribunal are whether, for the purposes of section 6B(2) of the Act, the applicant is a “spouse who survives a deceased person”, and in particular whether, under s 6A(5), but for “a temporary absence” or “absence because of special circumstances”, such as illness or infirmity, the applicant would have been living with the deceased at the time of his death, or, alternatively under s 6B(3), if a marital relationship had previously existed but did not exist at the time of the deceased's death, whether Mrs Gray was wholly or substantially dependent on Mr Gray at that time of his death. I have decided that, but for an absence because of special circumstances such as illness, Mr Gray would have been living with Mrs Gray at the time of his death and that she is a “spouse who survives a deceased person”.
3. Mr Trigar of Counsel appeared for Mrs Gray. Mr Dubé, a Senior Executive Lawyer with Australian Government Solicitor appeared as Counsel for the respondent. I had before me the T documents lodged in the matter pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, and the exhibits tendered during the hearing. Evidence was given by Mrs Gray, by her brother in-law, Mr David Gray, and by her general practitioner, Dr Pye.
4. Sections ss 6A and 6B of the Act provide as follows:
6A Marital relationship
(1) For the purposes of this Act, a person had a marital relationship with another person at a particular time if the person ordinarily lived with that other person as that other person's husband or wife on a permanent and bona fide domestic basis at that time.
(2) For the purpose of subsection (1), a person is to be regarded as ordinarily living with another person as that other person's husband or wife on a permanent and bona fide domestic basis at a particular time only if:
(a) the person had been living with that other person as that other person's husband or wife for a continuous period of at least 3 years up to that time; or
(b) the person had been living with that other person as that other person's husband or wife for a continuous period of less than 3 years up to that time and the Authority, having regard to any relevant evidence, is of the opinion that the person ordinarily lived with that other person as that other person's husband or wife on a permanent and bona fide domestic basis at that time;
whether or not the person was legally married to that other person.
(3) For the purposes of this Act, a marital relationship is taken to have begun at the beginning of the continuous period mentioned in paragraph (2)(a) or (b).
(4) For the purpose of subsection (2), relevant evidence includes, but is not limited to, evidence establishing any of the following:
(a) the person was wholly or substantially dependent on that other person at the time;
(b) the persons were legally married to each other at the time;
(c) the persons had a child who was:
(i) born of the relationship between the persons; or
(ii) adopted by the persons during the period of the relationship;
(d) the persons jointly owned a home which was their usual residence.
(5) For the purposes of this section, a person is taken to be living with another person if the Authority is satisfied that the person would have been living with that other person except for a period of:
(a) temporary absence; or
(b) absence because of special circumstances (for example, absence because of the person's illness or infirmity or a posting of the person).
6B Spouse who survives a deceased person
(1) In this section:
deceased person means a person who was, at the time of his or her death, a contributing member, a recipient member or a person in respect of whom deferred benefits were applicable.
(2) For the purposes of this Act, a person is a spouse who survives a deceased person if:
(a) the person had a marital relationship with the deceased person at the time of the death of the deceased person (the death); and
(b) in the case of a deceased person who was a recipient member at the time of the death:
(i) the marital relationship began before the recipient member became a recipient member; or
(ii) the marital relationship began after the recipient member became a recipient member but before the recipient member reached 60; or
(iii) in the case of neither subparagraph (i) nor (ii) applying—the marital relationship had continued for a period of at least 5 years up to the time of the death.
(3) In spite of subsection (2), a person is taken to be a spouse who survives a deceased person if:
(a) the person had previously had a marital relationship with the deceased person; and
(b) the person did not, at the time of the death, have a marital relationship with the deceased person but was legally married to the deceased person; and
(c) in the case of a marital relationship that began after the deceased person became a recipient member and reached 60—the relationship began at least 5 years before the deceased person's death; and
(d) in the Authority's opinion, the person was wholly or substantially dependent upon the deceased person at the time of the death.
5. There is no dispute about the fact that Mr and Mrs Gray were married on 2 December 1978 and had three children, and had what one might call a normal marriage, with some ups and downs, until sometime in the 1990s. Nor is there any dispute about the fact that Mr Gray moved from the matrimonial home in Victoria to Western Australia in April 1999 and had not lived with Mrs Gray between that time and his death on 2 October 2000.
6. The evidence before the Tribunal included a statement from Mrs Gray (A1) which, unfortunately, only came to the attention of the respondent and the Tribunal this morning. That statement discloses matters as to contact between Mr and Mrs Gray during the period after he left Victoria to live in Western Australia, which were not disclosed in any of the other material before the Authority and before the Tribunal. The statement refers to contact between Mr and Mrs Gray after April 1999, a visit by Mr Gray to his family in Victoria in June/July 2000 and telephone contacts between Mr and Mrs Gray on the day Mr Gray committed suicide.
7. There is evidence that, in 1993, Mr Gray, who was still serving in the Army at that time, was referred for psychiatric treatment because of “gambling behaviour as a result of isolation in the Canberra setting” (T6, p9). That was at a time when he was living in Canberra, after being posted there, before his family had moved up. The note states: “Has discussed situation with Gamblers Anonymous and found advice helpful. Discussed… establishment of short-term goals and development of a hierarchy of increasingly ‘tempting’ scenarios.” The referral suggested that the problem may have been a symptom of depression.
8. Thus, the evidence is that Mr Gray first had a gambling problem, even though Mrs Gray did not know of it at the time, in 1993. The problem surfaced again, as set out in Mrs Gray's statement, in about 1997, when the family was living in Victoria.
9. At that stage Mrs Gray was extremely distressed about Mr Gray’s gambling habit. As she stated in para 14 of her statement, she took the Bankcard from him. There is evidence that Mr Gray went to Mr Romanic, a psychologist in Geelong, from approximately April 1997. He was diagnosed with depression (T34). Mrs Gray described how the family had to downsize their home. On the day Mr Gray was meant to pay the conveyancing fees for the sale and purchase, he gambled the money instead. That was in 1998 and he attended for counselling at Bethany Family Support in relation to his gambling from June to September 1998. The Problem Gambling Counsellor wrote on 2 November 2000 (T31):
I am writing to confirm that the above, Mr Phil Gray, attended for counselling at this agency between June and September 1998 to address his gambling problem. He had moved from the family home at the time of the appointments due to the stress and other difficulties that his gambling behaviour caused in the family. However, when he moved to West Australia to be with other members of his family, Mrs Wendy Gray and children Megan and Brett attended counselling here to discuss the effects of this on them.
Mrs Wendy Gray had remained hopeful that if Mr Phil Gray could resolve his gambling issues and depression he was feeling, that the family could be reunited.
10. Mr Romanic in his report dated 17 June 2002 (T5), wrote that he saw Mr and Mrs Gray in 1997 and Mr Gray returned to see him in 1998. He noted (T5, p139): “presenting problems …. his low frustration tolerance, irritability and emotional reactivity towards his immediate family of wife and three children”. He wrote there were “signs of anxiety and some emotional vulnerability”, and there had also been a “problem adjusting to civilian occupations”. In that report, Mr Romanic diagnosed depression with underlying anxiety, without mention of the gambling problem, but the evidence from Mrs Gray is that in 1998 Mr Gray was again addicted to gambling, and that is confirmed from the report of Bethany (T31).
11. Mr and Mrs Gray were temporarily separated in 1996, when he went to Western Australia, where his family lived, but he returned and they reconciled and resumed a full marital relationship. When they had had to downsize their house in July 1998, there was a problem when Mr Gray gambled and lost the conveyancing money, which was due to be paid to a conveyancer on the sale of one house and the purchase of another. However, Mrs Gray believed that Mr Gray had conquered his gambling problem with the assistance of Mr Romanic, to whom Mr Gray returned in 1998 after that incident, and the gambling counsellor at Bethany. On 11 April 1999, Mrs Gray came home from work and was told by her husband to look at bank statements on the table. When she looked at them she saw evidence that he had been transferring money to use on the pokies. She said that he had spent $2000 to $3000. There is evidence of $600 being spent in one day (T12, p 21-22).
12. Mrs Gray said that Mr Gray said to her that day, that she had told him in 1998 that if he ever did this again he would have to leave. He said that he understood that was what he would have to do. They discussed it, and agreed that he would leave the matrimonial home on Friday 16 April. Mrs Gray said, and I accept her evidence, that at no stage was this seen as a permanent arrangement, but rather as something that he had to do until he could overcome the temptation of gambling at the pokies. He went to Western Australia, where his family lived, partly to have their support and partly because there are no pokies in Western Australia.
13. Mrs Gray said that she and her husband both understood that he was going away to sort himself out, and that she saw him as having problems, something like a mid-life crisis, but she continued to regard herself as married to him, and he did the same. She said she just hoped that he would work his way through it. She explained that she made it clear that she would not take him back again until he had solved the problem. She gave evidence, which I accept, that the reason why she was so firm about that was because it was so distressing to her and the three children when Mr Gray left. She said her son was particularly upset, because his father left the home when he was away, and did not even say goodbye.
14. However, once Mr Gray left the family home and went to Western Australia, contact between Mr and Mrs Gray continued. Partly, they discussed financial matters. Mrs Gray took steps to try and sort out their financial affairs by having Mr Gray accept responsibility for one loan, while she accepted responsibility for the other. She hoped that she would be able to preserve the family home in Geelong for her and the children to live in. Mrs Gray did issue proceedings in the Family Court in October 1999, but they related only to financial matters. Mrs Gray said that it was her hope that proper financial arrangements would have preserved the house. That did not happen. The house unfortunately had to be sold in the year 2000. Although consent orders were made by the Family Court on 2 February 2000 (T8, pp50-51), Mrs Gray said the payments specified were not made. She was on a sole parent pension.
15. Mrs Gray said that she and her husband spoke frequently on the phone. He had been working in Western Australia but was sending her very little money. He was very upset about her going to a solicitor, which she did in late 1999, but after a time he understood why she had done it, and they resumed contact. She said that he explained that they would go on parenting together, and in fact, after a time, the difficulties due to her contacting the solicitor, seemed to have been put aside, and they concentrated on the future.
16. Mrs Gray said that her husband had suggested reconciling when he was in Kalgoorlie in September 1999. He wanted her and the children to join him there. She felt it was not the appropriate time to do so. She said she would move to Western Australia to be with him if he was happier there, but she could not disrupt the children with a move at that time. She said her son had withdrawn from school when his father left home and was angry and aggressive. He was drinking a lot and getting into fights to the extent that the police became involved. One daughter became very withdrawn, the other became dependent on Mrs Gray, ringing her up to 10 to 12 times a day. They both had professional counselling, one from a psychiatrist, the other from a counsellor.
17. Mrs Gray said that she and Mr Gray had a two hour telephone conversation about reconciliation in September 1999. At another time, he suggested that he return home because the children were “not travelling well”.
18. In mid-2000, Mr Gray discussed with his wife on the telephone, coming back to Victoria to see her and the children during the school holidays. He wanted to stay in the family home, but because the youngest child, Megan, had been very upset with him for leaving, and at that stage their son was also still very angry, Mrs Gray told him it would be better if he stayed at a motel and he did so. He came to Victoria, he saw his son every day, and he and his son worked out their problems and started a much better relationship. He also saw the older daughter, Nicole, when she was not studying, and saw something of the younger daughter, although she had still not resolved her problems with her father. He also saw Mrs Gray and he came over for dinner.
19. Mrs Gray said that while Mr Gray was in Victoria, he said he needed more time to work things out. She felt that he wanted to raise the question of coming back, but it was not expressly discussed, although the understanding was that he wanted more time to work the problems through.
20. In her statement, in para 26, Mrs Gray said that in August 2000 her husband rang from Western Australia and said he was not functioning well, and that he wanted to come home. In discussion she said, "Are you sure this is what you want to do?" She explained that she could not have the children go through all the problems that they had gone through again, and neither could she go through them again, so she required that he get professional help if he was not coping. She said she was very concerned as he sounded “very hollow”.
21. Mrs Gray kept in touch with her husband’s family at all times. She spoke to her mother-in-law on the telephone once a fortnight. In September 2000, she was told by some of the family in Western Australia that her husband was in hospital. The records before the Tribunal (R2) are the clinical notes of that admission. They show that unfortunately Mr Gray did not open out to the hospital as to exactly how he was feeling. The hospital notes at the time of the discharge on 15 September 2000 read: “Philip was positive about his future, and looking forward to making changes and working on his self-esteem”. There is also an entry in the notes for 14 September 2000, which said “Philip feels a lot better today. He feels that his stay here has been therapeutic, and came at just the right time in his life. He has been given LAMPS number and will contact them. He has filled in his suicide contingency plan, and was laughing and reacting appropriately and spontaneously”.
22. It is tragic to read those notes, bearing in mind that just a little over two weeks later, on 2 October, he did in fact commit suicide.
23. Mrs Gray's evidence about the two phone calls she received from her husband on the day that he committed suicide are set out at paragraphs 28, 29 and 30 of her statement:
28. On 2 October 2000 I received a phone call from my late husband. I could tell by the tone of his voice that he was upset and he was again talking about not coping, being depressed, very sad, like there was a big black hole sucking him in. He again asked me about wanting to come home. I was very concerned for him and said to him to come home, as the kids loved him dearly. He said that in effect he didn't want the kids that he wanted me. I said that I was worried that if things didn't work out that he would do something silly which was the reason for him being admitted to Bunbury Hospital. I made him promise that he would not do anything silly if he returned because if he did neither I nor the kids could cope if he did something silly. He then asked me if I would think about it and to call him back.
29. He then called me back after five minutes at approximately 6.45p.m and was very calm. He said that everything that I told him was true about not doing anything silly and that I was not to worry as he had everything worked out. I honestly thought that given how calm he was he had thought about what was required for him to return home. We both started to cry and told him I loved him. My mother took the phone off me, as I was obviously upset. When she asked if he was there he hung up the phone. I tried to call him back and it went unanswered so I called his parents who lived 2 streets away and told them that he was really upset and if they could go over to the house.
30. I received a phone call from his parents about 15 or 20 minutes later that they found him in the shed and that my late husband had in fact taken his life. My general practitioner Mr Daryl Pye came to the house that night to console the children and me. I was given medication to help me sleep. Whilst my late husband was living in Western Australia I had spoken to Doctor Pye about the situation that I found myself in having a husband with a gambling addiction and waiting for things to improve so we could be together again.
24. I find that Mr Gray called Mrs Gray twice on the last day of his life and said that he wanted to come back to the family. He also said that he was not wanting to come back just for the children but also for her. I find on that evidence that he still had a commitment to the marriage, and that he wanted to be with his wife and family, but he was kept apart from them because of the effect on them of his problems of depression and gambling addiction. I find that Mrs Gray agreed to him coming back, with some reservations, and told him that day that she still loved him.
25. I find from Mrs Gray's evidence that she never ceased to regard herself as the wife of Mr Gray, and was ready to resume life with him if she could feel confident that she and her children would not have to again go through problems caused by his gambling. Mrs Gray's evidence is that she at all times kept close contact with her mother-in-law in Western Australia with fortnightly phone calls on a Sunday, that she and her husband had a number of telephone calls, and that the issue of reconciliation was something that they discussed and that was always in her mind. But she did believe that it would only work when her husband had solved his problems with his gambling addiction. Mrs Gray said that she always loved her husband, and regarded herself as still married to him. She said, “I thought we were making ground slowly to get back together”.
26. Mrs Gray's evidence that she continued to feel committed to her husband is supported by the evidence of her doctor, Dr Pye, who knew her well. He said he had never met Mr Gray, but he had seen Mrs Gray a number of times in the year 2000. He said her consultations were always about psychological or psychosomatic complaints, because she kept good health. The problems were related to her concern about the marriage and the possibility of reconciliation. Dr Pye’s letter (T57, p137) reads, in part, as follows:
This is to certify that I have been caring for Wendy Gray for several years. Despite a separation from her husband due to her late husband’s behavioural, gambling and depressive disorders, there had been a serious amount of dialogue between Mr and Mrs Gray regarding reconciliation. The conditions regarding a renewal of their relationship, including living in the same house, was for Mr Gray to exercise durable abstinence regarding gambling and adverse behaviour.
27. There is also support for the fact that Mr Gray regarded himself as a married man in the evidence of his brother, Mr David Gray. He said that he had never been given the impression from his brother, who he saw a lot of when he was in Western Australia, that the marriage was over. He thought, as did Mrs Gray, that Mr (Phil) Gray had problems which he had to sort out, and then he would be back with his family.
28. Unfortunately, it seems that Mr Gray's gambling addiction did continue while he was in Western Australia. The figures that he provided in his statement of financial circumstances (R4) do not explain why he was not able to make any of the agreed maintenance payments. He showed himself as earning take home pay of $2400 per month. Even if he had been making the maintenance payments required of him of $748 per month, and the loan payments, his expenses would only have been $1593 per month. However, Mrs Gray said he was not making the child support payments of $748, nor was he paying off the two personal loans of $360 and $235. Further, Mr David Gray said that his brother had borrowed $14,000 from his him, ostensibly to make up a shortfall on the sale of the house. However, Mr Gray, in the document as to his financial circumstances (R4), showed that there was not a shortfall on the sale of the house. After the mortgage was paid out, there was approximately $18,000 left. That went to Mrs Gray, and she said that she used it to pay off debts, but it does raise the probability that the $14,000 Mr Gray borrowed from his brother was not used to make up a shortfall on the sale of the house, but probably for gambling. Mr David Gray confirmed that there are no pokies in Western Australia but he said he was aware that his brother was betting on the horses, while he was living in Western Australia.
29. The fact that gambling was not mentioned as a problem in the hospital records (R2), unfortunately does not indicate that it was not happening, but simply that it was not revealed by Mr Gray. Both Mrs Gray and Mr David Gray said he did “keep a front”, and did not reveal his innermost feelings.
30. There is evidence from Mrs Gray and from the hospital records (R2) that Mr Gray had had a relationship of 6 weeks (or 6 months) with another woman, Julie, but it was over at the time of his suicide. Mr Gray in his suicide note referred to both Julie and his wife. In the part referring to Julie, he wrote (T23, p72):
Julie, the emotional roller-coaster ride we went on didn’t help. I will say that in the 6 months we were together I felt alive. Unfortunately, we stuffed it up with false hopes. You have been available to help me before, I lost interest in saving myself.
31. Mrs Gray did not regard the relationship with Julie as having created a hurdle to a reconciliation. I find that it was one of the issues Mr Gray had to work through but it was not in itself indicative that the marital relationship was over. Mrs Gray said Mr Gray told her about Julie, but said he was not emotionally linked to her.
32. The concept of special circumstances is discussed in Re Beadle v Director-General of Social Security (1984) 6 ALD 1 , where Toohey J, Mr Wilkins and Dr Billings said:
An expression such as “special circumstances” is, by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique, but they must have a particular quality of unusualness that permits them to be described as special.
33. That description was approved by the Full Court in Beadle v Director General of Social Security (1985) 60 ALR 225 at 229.
34. I find that in this case the circumstances were special. Mr Gray had an illness. He suffered from depression and gambling addiction. He and his wife had tried very hard to get the help that was needed to treat and manage his problems. In spite of their attempts to do so, he had fallen back into his gambling habits by April 1999. Even though he left the family home in April 1999, I find that he left with the hopes that, by working in Kalgoorlie and earning well, he would be able to help restore the family finances, and that, when away from the pokies, he would give up his gambling habit and ultimately return to his family in Victoria. The marriage relationship was subsisting. The illness meant Mr and Mrs Gray could not live together, but they both saw that as temporary and hoped for a reconciliation.
35. Unfortunately, that did not happen. Although Mr Gray was in employment all the time he was in Western Australia, he seems to have made only a very small contribution to the family's finances. But Mr and Mrs Gray were not so angry with each other that the marriage was clearly finished. I find they both continued to regard the marriage as ongoing and hoped that Mr Gray would solve his problems and they would get back together again. That hope and belief was shared by Mrs Gray with her doctor, and was the impression that Mr Gray gave to his brother. Their continuing commitment to their marriage and shared hope for reconciliation, in the face of physical separation due to his gambling problems, is unusual and special.
36. I find that the marriage had all the elements of a marital relationship until the gambling addiction and the accompanying depression, which led to the final tragic suicide, became too much for Mr Gray to continue living in the family. The effect on the family was disastrous. Although after April 1999 Mr Gray was no longer living with the family, he maintained close contacts with the children and with Mrs Gray, and kept the hope that he would return to live with Mrs Gray and the children. Mrs Gray kept close contact with Mr Gray’s mother and his sister as well as with him. Even in his suicide note, Mr Gray expressed his concern for Mrs Gray and the children and wrote that his pension and superannuation money would go to Mrs Gray. I find that he continued to see her as his spouse and to see himself as having financial responsibilities to the family, even though his illness was preventing him from living up to those responsibilities.
37. I find also that Mrs Gray continued to regard Mr Gray as her husband. But she was torn between her responsibilities to the children and her responsibilities to him. She felt that she could only agree to live together with him again, if she knew the family would not again go through what they had gone through following the April 1999 separation. I find that neither Mrs Gray nor Mr Gray believed the marriage was finished.
38. Under s 6A(5) of the Act, I find that Mrs Gray is taken to have been living with Mr Gray, because I am satisfied that she would have been doing so except for a period of absence to the special circumstances of his gambling addiction and his depression. They were separated because they agreed he should go away to try and deal with his problems. He went to Western Australia because his mother and brother and sisters lived there and because there were no pokies there. I find that if Mr Gray had been able to conquer his gambling addiction and related depression, he and his wife would have reconciled and a normal marital relationship would have resumed.
39. I find that Mr and Mrs Gray would have been living together on a permanent and bona fide domestic basis, except for the fact that they were living apart because of the special circumstances referred to in the preceding paragraph.
40. I do not find that the Family Court orders as to financial matters indicated that the marriage relationship was at an end. Neither party issued divorce proceedings after one year of separation. They maintained contact and felt emotionally involved with each other. They continued to hope for a reconciliation. There was still a mutual commitment in respect of their marriage of 22 years.
41. Mr Dubé referred to Tulk v Tulk and Hoffmeyer v Hoffmeyer [1907] VLR 64 at 65. I find that both spouses still recognised the marriage relationship as subsisting at the time of Mr Gray’s death, notwithstanding that it was undergoing severe problems due to his depression and gambling addiction, and financial issues. Mr Gray’s request on the day of his death to return home, and his statement that he wanted to come not only for the children but also to be with Mrs Gray satisfies me that he still saw the marriage as a subsisting bond. I also accept Mrs Gray’s evidence that she too saw the marriage as continuing.
42. I find that Mr and Mrs Gray would have been living together but for the special circumstances associated with Mr Gray's illness, and thus that Mrs Gray was a “spouse”, and was entitled to the spouse's pension under s 39 of the Act.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Dwyer
Signed: Josephine McKay
AssociateDate/s of Hearing 4 May 2004
Date of Decision 4 May 2004
Counsel for the Applicant Mr Trigar
Solicitor for the Applicant KCI Lawyers
Counsel for the Respondent Mr Dubé
Solicitor for the Respondent Australian Government Solilcitor
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