Moore and Repatriation Commission - [2002] AATA 518

DECISION AND REASONS FOR DECISION [2002] AATA 518

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/658

VETERANS' APPEALS DIVISION          )
           Re      Mary Marcella Moore
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member

Date27 June 2002
PlaceSydney

Decision Pursuant to Section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor, decides that Mrs Moore was a dependant as defined in the Veterans' Entitlements Act 1986.

..............................................
Ms S M Bullock
Senior Member
CATCHWORDS
VETERANS' AFFAIRS - Entitlement to Widow's Pension – Dependant – Whether a "Partner" of Veteran at time of his death – Whether a Member of a Couple – Whether in a Marriage-Like Relationship.

LEGISLATION

Veterans' Entitlements Act 1986 ss 5E(1), 5E(2), 5E(3), 11, 11A

AUTHORITIES
Garner v Repatriation Commission (1998) 53 ALD 297
Jenkins v Repatriation Commission (1999) 56 ALD 379
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Re Secretary, Department of Social Security and Le-Huray (1995) 36 ALD 682
In the Marriage of Todd (No 2) (1976) 25 FLR 260
Pearce v Hornsey (1991) 29 FCR 239

REASONS FOR DECISION

27 June 2002 Ms S M Bullock, Senior Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mrs Mary Marcella Moore, "the Applicant", of a decision of the Repatriation Commission ("the Commission") dated 12 April 2000 (T2), as affirmed by the Veterans' Review Board ("The Board") dated 6 March 2001 (T30). Both the Commission and the Board decided that Mrs Moore was not entitled to claim a pension in respect of the death of her husband, Neville Francis Moore (known as "Bill"), as Mrs Moore was not a dependant as defined in the Veterans' Entitlements Act 1986. Mr Moore died on 12 September 1986 aged 61 years (T24, p35).
A hearing was held before the Tribunal in Sydney on 14 November 2001. Mrs Moore was represented by Mr M Vincent of Counsel and the Respondent, the Commission, was represented by Ms T McConnell, Departmental Advocate. Mrs Moore provided oral evidence to the Tribunal as did Mr Brian Moore, Mr and Mrs Moore's son. Documents were lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T31) and the following documents were also taken into evidence:
Exhibit No.   Description Date
A1      Statement by Mrs Mary Marcella Moore 13 September 2001
A2      Statement by Mr Brian Moore       3 September 2001
A3      Statement by Mr D Mitchell           9 January 2001
A4      Statement by Dorothy M Cook     Undated
A5      Series of five photographs featuring Mr Moore and family      1976, 1983, 1984, 1996
A6      Report by Dr M H L de Groot        24 June 1985
R1      Armidale and New England Hospital records     9 August and 10 May 1976
R2      Department of Veterans' Affairs "Change of Address" forms 1981, 1984
R3      Department of Veterans' Affairs form - "Advice of Death From Other Than A Repatriation Hospital"       16 September 1986
R4      Department of Veterans' Affairs form - "Statement of Assets" by Mr N Moore      20 December 1984
R5      Department of Veterans' Affairs form – Claim for Service Pension    25 May 1979
R6      Department of Veterans' Affairs form – Claim for Service Pension    8 December 1978
R7      Department of Veterans' Affairs – "Medical Report"     10 May 1978
R8      Transcript of Veterans' Review Board Hearing 6 March 2001

ISSUES

There are a number of related issues which the Tribunal must determine in order to make a decision as to whether or not Mrs Moore was a dependant of Mr Moore immediately prior to his death and therefore whether or not she is entitled to claim a Widow's Pension. Specifically the issues in this matter are:
(i)Whether or not Mrs Moore is a dependant of Mr Moore as set out in subsection 11(1) of the Veterans' Entitlements Act 1986 at the time of Mr Moore's death.
(ii)Whether or not Mrs Moore satisfies the requirements of section 5E of the Veterans' Entitlements Act 1986 as being a member of a "couple" and in a "marriage-like relationship" as set out in section 11A of the Veterans' Entitlements Act 1986.
(iii)Whether or not Mrs Moore is eligible to claim a War Widow's Pension

LEGISLATION

A determination in this matter requires consideration of the provisions of the Veterans' Entitlements Act 1986 ("The Act").
Section 11 of the Act deals with dependants and as relevant subsection 11(1) of the Act states :
"11 Dependants
(1) In this Act, unless the contrary intention appears:
dependant, in relation to a veteran (including a veteran who has died), means:
(a) the partner; or
(b) a non-illness separated spouse; or
(c) a widow or widower (other than a widow or a widower who marries or re-marries); or
(d) a child;
of the veteran.
Note: a veteran may have more than one dependant of the kind referred to in paragraphs (a) to (d) at the same time
…"
In Mrs Moore's case, the only class of dependant under which she can qualify is as a "partner". "Partner" is defined in subsection 5E(1) of the Act and means a person who is a member of a couple. Under section 5E of the Act, a member of a couple is given meaning by subsection 5E(2), (3), (4) and (4A). These provisions are :
"5E Family relationships definitions—couples
…
Member of a couple—general
(2) 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 living separately and apart from the other person on a permanent basis; or
(b) all of the following conditions are met:
(i)the person is living with a person of the opposite sex (in this paragraph called the partner);
(ii)the person is not legally married to the partner;
(iii)the person and the partner are, in the Commission's opinion (formed as mentioned in section 11A), in a marriage-like relationship;
(iv)The person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.
Note 1: for living with a person see subsection (3).
Note 2: a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 is a relationship between a person and:

an ancestor of the person; or
a descendant of the person; or
a brother or sister of the person (whether of the whole blood or the part-blood).
Note 3: subsection 5R(5) (determination in relation to an illness separated couple) is a qualification to the definition of a member of a couple.
Note 4: subsection 5R(6) (determination in relation to a respite care couple) is a qualification to the definition of a member of a couple.
(3) For the purposes of subparagraph (2)(b)(i), a person is to be treated as living with another person during:
(a) any temporary absence of one of those persons;
(b) an absence of one of those persons resulting from illness or infirmity;
if the Commission is of the opinion that they would, but for the absence, have been living together during that period.
Member of a couple—special excluding determination
(4) A person is not a member of a couple if a determination under subsection 5R(3) is in force in relation to the person.
Note: subsection 5R(3) allows the Commission to treat a person who is a member of a couple as not being a member of a couple in special circumstances.
(4A) The partner of a person who:
(a) is receiving a youth allowance under the Social Security Act; and
(b) is not independent within the meaning of Part 3.5 of that Act;
is not a member of a couple for the purposes of:
(c) the provisions of this Act referred to in the table at the end of this subsection; and
(d) any provision of this Act that applies for the purposes of a provision mentioned in paragraph (c).
Note:Paragraph (d) has the effect of treating a person as not being a member of a couple in provisions that apply for the purposes of the income test, assets test or compensation recovery provisions, including section 5H (Income test definitions), section 5L (Assets test definitions), section 5NB (Compensation recovery definitions) and Divisions 1 to 11 of Part IIIB (General provisions relating to the income and assets tests).
…"

Subsection 5E(3) is a "deeming" provision. It allows that a matter may be assumed even if the factual position is otherwise.
Subsection 5E(2)(b)(iii) of the Act provides that the decision-maker must form an opinion as to whether or not the person is in a marriage-like relationship under section 11A, which provides:
"11AMarriage-like relationships
In forming an opinion for the purposes of this Act whether 2 people are living together in a marriage-like relationship, 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; and
(ii)any significant pooling of financial resources especially in relation to major financial commitments; and
(iii)any legal obligations owed by one person in respect of the other person; and
(iv)the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i)any joint responsibility for providing care or support of children; and
(ii)the living arrangements of the people; and
(iii)the basis on which responsibility for housework is distributed;
(c)the social aspects of the relationship, including:
(i)whether the people hold themselves out as married to each other; and
(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d)any sexual relationship between the people;
(e) the nature of the people's commitment to each other, including:
(i)the length of the relationship; and
(ii)the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage-like relationship..."

Evidence Of Mrs Mary Marcella Moore

Mrs Moore, whose date of birth is 18 May 1928, told the Tribunal that she was married on 1 May 1948 and initially lived with her husband, Neville Francis Moore, in Inverell. Mr and Mrs Moore moved to Armidale in about 1952 and lived for several years in a cottage on Mrs Moore's mother's property. Mrs Moore told the Tribunal that her husband was always a heavy drinker but at that time he was not abusive. During this period in Armidale, they had two little girls, Rhonda, the oldest daughter (DOB 31 August 1948) and Gail (DOB 27 August 1950). Rhonda was slightly intellectually disabled which was devastating to Mr and Mrs Moore. The couple next moved to a then Housing Commission property where their eldest son Brian was born (DOB 25 January 1955). Mr and Mrs Moore have a fourth child, Neville, born on 13 November 1959. Neville suffers from severe epilepsy. At that time, Mr Moore was working at Telecom.
Mrs Moore told the Tribunal that her husband's drinking pattern accelerated. He was like a "Dr Jackal and Mr Hyde " and was verbally abusive. His behaviour varied from being nice to that of an "ogre" depending on his level of alcohol consumption. Mrs Moore stated that her husband was drinking during the working day at lunch times, not only drinking beer, but in the colder weather, drinking rum with beer chasers. The children would not bring their friends around to the home because of their father's behaviour. It was at this point that Mrs Moore decided that she could not cope with Mr Moore's behaviour nor should the children. She left the family home and purchased another home with the proceeds of her mother's estate. Mrs Moore moved to Uralla which is about 28 kilometres from Armidale, initially living in a home at Bridge Street, Uralla. Mr Moore stayed in Armidale living in the original family home. Mrs Moore did not take any action to cause the sale of the house whilst he was still living there.
In 1976, Mr and Mrs Moore were divorced. Mr Moore did not want this and asked Mrs Moore why they could not just live apart but not go so far as to divorce each other.
Prior to the separation and divorce, Mr Moore was not very helpful around the house. Initially, the couple had had a joint bank account, but Mr Moore would go to the hotel and place bets through an S P Bookmaker thus depleting significantly their savings. Because of this, Mrs Moore arranged to have separate bank accounts. This occurred before the separation and 1976 divorce. Mrs Moore was given $200.00 per week by Mr Moore which was to cover household expenses and any rent or mortgage repayments. Once Mr and Mrs Moore were divorced, they did not have a formal property settlement. They agreed that at the appropriate time, the house would be sold which eventually occurred and they each received half of the proceeds of the sale. Mrs Moore used these funds to purchase a further property. Mrs Moore bought a car but it remained registered in both her and Mr Moore's name because it was too costly to change the registration.
Prior to the divorce, when the couple were living together, there was no sexual relationship as Mr Moore had been impotent for several years. Mrs Moore had in fact moved into her daughter Gail's room, as Gail had left home at that time to pursue a career in teaching.
The Tribunal was told that Mrs Moore knew, because her husband had told her, that the divorce was his fault. The problem for Mrs Moore was that she just did not feel safe for herself or the children when living in the same house with Mr Moore. She wanted to have a clean break.
After the divorce, Mr and Mrs Moore still kept in contact. Mr Moore was often hospitalised mainly due to alcohol, emphysema and cardiac problems. During these periods, his son's name, "Brian Moore" was frequently listed on hospital documents as the next of kin. Mrs Moore explained that her son lived near the hospital and he was often the person who took Mr Moore to hospital and brought him home.
In about 1978, Mr Moore was again hospitalised. Following this hospital admission, Mr Moore came back to live with Mrs Moore at Bridge Street, Uralla. Mrs Moore told the Tribunal that her thinking had changed at that time from wanting to make a clean break, to thinking that because her husband's attitude had changed, she was willing to have another go at living together. She was Mr Moore's wife and he was her husband, Mrs Moore stated - "It was always just us". Mr Moore came home, having not had alcohol for some time while in hospital. He acted like his former self.
Mr and Mrs Moore did not go out very much. Mr and Mrs Moore were socially very quiet. They were involved in home-oriented activities such as barbeques, birthday celebrations and christenings. Mrs Moore stated that her husband thought the world of his children. He would often take Neville to Sydney to see specialists about his epilepsy. Mrs Moore told the Tribunal that most people did not know that she and Mr Moore were divorced, apart from close family.
Mrs Moore was employed as a cook at the Ex-Servicemen's Club, one kilometre away from her home. As time passed, Mr Moore went back to his high level of alcohol consumption and Mrs Moore would often see her husband at the club. He would wait for her when she finished her shift to drive her home but Mrs Moore frequently walked home because Mr Moore was so inebriated and she felt unsafe driving with him. Mrs Moore described taking her husband to work at 7.30 am and then he would be home at 9.00 am "blind drunk". Mr Moore would then have a sleep and later return to work. Mr Moore's health deteriorated with this level of alcohol consumption. He was spending more and more time in hospital and less time at work, Mrs Moore explained. During the period when Mr Moore lived at Bridge Street, Mrs Moore continued to do most of the shopping and household chores. Mrs Moore later moved to another property in Walcha Road, Uralla in about 1982 and Mr Moore moved with her.
Mrs Moore described her husband as having a pattern of being calm because he had "dried out" after hospitalisation. This period of relative calm would not last. When Mr Moore was not drinking, Mrs Moore stated that the family interacted like "a real family" again. She and Mr Moore would talk and discuss issues and the children would also talk and be involved in family discussions.
Life together however deteriorated again because of Mr Moore's continued high level of alcohol consumption. Mr Moore could not take care of himself. He would soil his clothes, his bed linen and his ability to take care of his hygiene deteriorated remarkably. He would get up to go to the bathroom and end up becoming lost in the wardrobe. He was not only continuing his verbal abuse, but he was actually physically threatening and on one occasion he used a knife to threaten Mrs Moore. Mr Moore was extremely rude to anyone who visited the house. In providing this evidence, Mrs Moore became very visibly upset as she recalled these incidents. She told the Tribunal that it had come to a point where she could only stand so much and Mr Moore's behaviour was physically and emotionally very distressing to her and the family. Despite this behaviour, Mrs Moore believed that 90 per cent of the people in their social circle believed that they were together – "Bill and Mary". Mrs Moore told the Tribunal that she considered her family to be Bill, herself and the children. Neither herself or Mr Moore had any other intimate relationship.
Mrs Moore explained that something had to be done about Mr Moore's dreadful behaviour. The hospital would only keep Mr Moore for short stays until his physical health improved. Their son, Brian, made inquiries about whether or not Mr Moore could be cared for in a nursing home. The advice Brian received was that a nursing home would not take Mr Moore because of his behaviour. The family had a discussion which included Mr Moore. It was decided that he should move to a unit near to his doctor but still close to Mrs Moore. To this end, a unit was obtained through the Housing Commission and was located on the corner of Prince and Duke Streets, Uralla. This accommodation was 500 metres away from Mrs Moore's home. Mrs Moore told the Tribunal that she purchased Mr Moore's furniture, his bedding and other household items. Mr Moore purchased his own television. During this period, Mr Moore's health continued to deteriorate and the consequence of this was that he eventually began to consume less alcohol. Mr Moore was still having hospital admissions.
Under the new arrangements of Mr Moore living in his own accommodation, Mrs Moore would still see her husband at least every two or three days. She would take him his meals including soups and other food. She would telephone Mr Moore or he would telephone her and he would also come over to Mrs Moore's house on the weekends. When Mr Moore was in hospital, Mrs Moore would visit him everyday.
Mrs Moore had previously set up her own business in a jeanery and then later opened a second hand furniture shop. After Mr Moore had moved into his own accommodation, he would often come and sit at the back of the shop and then go off to the hotel.
Mrs Moore further explained to the Tribunal that she and her husband became closer towards the end of his life. Because Mr Moore was not drinking as much, he was not having the deliriums of previous times, nor was he physically or verbally abusive. Mrs Moore described her husband as becoming like his old self in terms of his personality. She thought of and discussed with her husband the possibility of them living together again, but he was very ill at that time. Mrs Moore believes that her husband probably thought it was too late for him to move back in because he was too physically ill. Before any arrangements could be made, she and her daughter had visited Mr Moore one day and found him dead.

Mr Moore was buried in Uralla. Mrs Moore bought two burial plots next to each other, one for Bill and one for her when she dies. Mrs Moore was not a beneficiary under Mr Moore's will. She did not know anything about it apart from her husband telling her that after he died, she would be well looked after. Mr Moore would remember birthday and Christmas presents and had bought her a silver heart engraved with "Mary the bravest". Mr Moore attended family functions and Mrs Moore provided the Tribunal with pictures of Mr Moore at Rhonda's wedding, in 1986, which he had said he had kept himself alive to attend. Mr Moore also attended family picnics as can be seen in pictures of such occasions in 1981 and 1983. In 1984 he attended a christening when he was still living with Mrs Moore. He attended Gail's wedding in 1976 which was the year that Mr and Mrs Moore were divorced.
The Tribunal was told by Mrs Moore that she and her husband knew that they had a relationship. They were much closer than it appeared. Mrs Moore stated that she did not feel guilty about what had happened explaining that at various times in her life she had to make hard decisions for herself and for the children's welfare. When Mr and Mrs Moore separated for the second time she had to think of what was best for him and for her. She was afraid for her physical well being and very much threatened by his drinking. Mrs Moore could see no other option.
The Tribunal was told of Mr Mitchell, a neighbour, who had lived next to Mr and Mrs Moore in Bridge Street. He believed that Mr and Mrs Moore were married. After the couple moved to Walcha Road, Mr Mitchell noted in his statement (Exhibit A3) that he would often see Mr and Mrs Moore together at the bowling or the golf clubs. Mrs Cook had provided a statement that she had known Mr and Mrs Moore in Armidale and Uralla and noted that people did not know that Mr and Mrs Moore were divorced (Exhibit A4).
At the time of Mr Moore's death, Mr and Mrs Moore had no property together or loans, bank accounts or assets. They had not had any such financial links for years, predating the divorce, because Mr Moore's drinking and gambling meant that finances had to be managed separately in order to ensure financial security. Mrs Moore did not know much about Mr Moore's finances. She did not know if he was in receipt of a Service Pension and a Telecom Pension. Mr Moore paid his own accounts but at Walcha Road, Uralla, Mrs Moore would do this. When their eldest daughter Rhonda was married in 1986, the year Mr Moore died, Mr and Mrs Moore contributed half each to the cost of a holiday for Rhonda and her husband.
Mrs Moore stated that in 1983 and 1984 (T8), she was listed as the "Next of Kin" with her son Brian. In 1986, Brian was recorded on hospital documents as the "Next of Kin". Mrs Moore stated that it depended on who had taken Mr Moore to hospital as to who was recorded on the admission forms. In this regard, she agreed that her son Brian was noted as the "Next of Kin" in 1980, 1982, 1984, 1985 and earlier in 1976, 1977, 1978 and 1979 (T6, T7, T10, T11, T12).
Mrs Moore concluded her evidence by telling the Tribunal that she and Mr Moore "thought the world of each other". At the end of his life, Mr Moore thought he had become a burden on his family because he was very ill. Mrs Moore did all she could in her power to look after Mr Moore and did not feel guilty about the arrangements put in place in order to do this. "There was too much deep feeling" to not take care of Mr Moore, she told the Tribunal. She was closer to Mr Moore near the time of his death than when they had parted the second time. In her statement, Mrs Moore noted that Mr Moore and she would see each other every day and that it felt like they were married but just living in different houses. They talked about issues to do with the children and other family matters such as a married couple would do. The only reason they were not living together was because Mr Moore had been so ill from his alcoholism, that it made him a different person who was impossible to live with. When the effects of the alcoholism receded, once again their thoughts and discussions turned to him coming back home.
Evidence Of Mr Brian Francis Moore
Mr Brian Moore stated that he moved in 1976, the year his parents divorced, to Sydney for one year. He later returned and lived in Armidale until 1986. Brian Moore returned to Sydney and was in Sydney when his father died. Mr Moore described his family as consisting of Mum and Dad, Neville, Rhonda, Gail and himself.
When the family lived at Walcha Road, Uralla from 1982, there was never any question of Mr and Mrs Moore as being anything other than "Bill and Mary", the couple. Mr Moore stated that his mother's feelings never changed for his father and that she was devoted to Mr Moore. Mr Moore furthermore believed that his father's feelings were the same for Mrs Moore, apart from when he was influenced by alcohol. When Mr Moore senior was inebriated, he was a changed person – "it made him hard to love", Mr Moore stated.
When Mr Brian Moore lived in Armidale, his home was across the road from the hospital and that was the reason his name was most often placed on the hospital documents because not only was he most frequently the person who took Mr Moore to hospital but he was the one who could be readily contacted should there be a need.
Mr Moore stated that when his father and mother were living together at Walcha Road, Mr Moore was presenting major problems. On one occasion, Neville Moore found his father threatening his mother with a knife. Mr Moore senior's deliriums became more and more unacceptable and unpredictable. He was ranting and raving, was nonsensical and had night wanderings. His father's hygiene was atrocious, Mr Moore stated and he was unable to control his bodily functions. Mrs Moore would always clean Mr Moore up, cook for him and care for him. Mr Brian Moore stated that as the eldest son, he took certain responsibilities in terms of assisting his mother and father. The family had discussed Mr Moore's welfare particularly in 1985, looking at the options in terms of his care. In this regard, Mr Brian Moore spoke to a nursing sister, Ms O'Brien about the possibility of nursing home care. There are two nursing homes in Armidale. However, Mr Moore was told that because of his father's behaviour and his chronic problems, a nursing home would not accept him particularly when his medical records were considered. Another option which was explored was that of care in a psychiatric hospital. There are psychiatric hospitals in Dubbo, Orange and Port Macquarie but nothing in Armidale. When the family looked into this option, it was apparent that Mr Moore would have to move away from his family and that he would be institutionalised. A psychiatric examination had been scheduled but the family did not follow through with this. Mrs Moore could not conceive of her husband being away, Mr Brian Moore stated.
The option agreed to in terms of Mr Moore's care from 1985 was that he move to his own accommodation closer to his doctor and closer to the family home. Mr Brian Moore spoke to his father about this and believed that Mr Moore senior was as aware of the problems as anyone. It simply was a situation, Mr Brian Moore explained, where the circumstances for Mr Moore's care had to change. Mrs Moore felt, as did other family members, that it was not safe for herself or the children to stay living in the same house as Mr Moore particularly as he was so volatile when intoxicated.
Mr Moore told the Tribunal that his father always came to all family occasions such as birthdays and Christmas. Mr and Mrs Moore would go to the races together and would go out with each other when he was not inebriated. While his parents lived in Uralla, it was Mr Brian Moore's view that no one knew that his mother and father were no longer legally married as they always presented themselves as husband and wife. To Mr Brian Moore's way of thinking, the manner in which his mother and father lived with each other did not change from when they were actually married to when they were divorced. They were either living apart or together, except for the short period immediately after Mrs Moore first left her husband.
Towards the end of his life, Mr Moore noted that his father's behaviour and attitude mellowed because he could not drink as much and he was very ill. Mr Brian Moore noticed that his parent's relationship became stronger. They had joint respect for each other and his father saw the effect on the whole family of his behaviour. In his statement, Mr Brian Moore noted that it really hurt his mother that she could not live with him. However, Brian Moore believed that the fact that they were not actually living under the same roof helped their relationship because they became closer. Furthermore, Mr Brian Moore also believed that although his father was an unstable person because of his alcohol consumption, Mrs Moore did have an underlying support base with regards to her children and she knew, and it was apparent, that Mr Moore was a good companion when he was sober. Brian Moore further noted that there was an important indication of his mother and father's commitment to each other in that neither of them ever sought other partners. They remained faithful to each other for the whole of their lives even when they were initially divorced. Mr Brian Moore opined that the love that his mother had for his father was "seemingly without bounds". This was the one thing that Brian noticed throughout their lives together. Mrs Moore had the responsibility of caring for two ill children, Rhonda and Neville and a very sick husband but she never wavered in the emotional support, compassion and care she gave to Mr Moore. Mrs Moore never stopped providing for Mr Moore despite his serious illness that made her life so difficult (Exhibit A2).
When Mr Brian Moore had moved to Sydney, he would talk by telephone to his father at his mother's shop. At that time Mr Moore Senior was mellow. He spoke to Brian of his fondness for Mrs Moore and his enjoyment of their renewed relationship. Furthermore, Mr Brian Moore gathered from various discussions he had with both his mother and father, that it would not have been out of the realms of possibility that they got back together again in the same house. Mr Brian Moore observed that his parents were "getting warm and fuzzy". It was openly discussed that he might come back home.
Mr Brian Moore told the Tribunal that he would never allow his father to endanger either himself, Mrs Moore or his siblings.
Mr Moore was asked about a medical report by Dr de Groot dated 24 June 1985, (Exhibit A6) which Mr Moore had not seen until recently. Dr de Groot noted that Mr Moore was separated but that he still saw Mrs Moore and they were getting on well. Mr Moore stated that this is indicative of their relationship even though they had separated again in 1985.
Mr Brian Moore opined that there was a lot of hurt during his mother's and father's relationship. It was horrific for his mother. As the children grew older, they understood more and admired her. Mrs Moore had her duty and she tried very hard. It was the fear of her husband that caused them to split up.
Mr Moore told the Tribunal that he had no doubt as to his father's devotion to Mrs Moore. Despite everything, he observed them having an ongoing relationship and reiterated that most people in Uralla and Armidale thought of them as husband and wife. In another statement made by Mr Brian Moore, (T28, p60), he concluded that his parents' seven-year relationship prior to Mr Moore's death was definitely marriage-like, in that it was at least the equivalent of their married relationship of the past 28 years.
Submissions
Mr Vincent submitted that a determination of this matter requires consideration of section 11 of the Act to determine whether or not Mrs Moore is a dependant in the form of a partner.
Mr Vincent noted that section 5E of the Act contains family relationship definitions including that of a partner under subsection 5E(1). Considering subsection 5E(2) of the Act, a member of a couple is defined and there is a need to consider under subsection 5E(2)(b)(i) the provisions of subsection 5E(3). This deals with the absence of one of the persons in a couple resulting from illness or infirmity. Subsection 5R(5) deals with illness separated couples. Mr Vincent submitted that in relation to subsection 5E(2)(b)(i) of the Act by reference to subsection 5E(3), that Mrs Moore was a member of a couple as a partner and that she was separated from her husband because of his illness of alcoholism. Mr Vincent furthermore submitted that Mrs Moore, on the evidence before the Tribunal, satisfied the provisions of section 11A because she and Mr Moore were living in a marriage-like relationship.
Mr Vincent referred the Tribunal to the Federal Court decision in Jenkins v Repatriation Commission (1999) 56 ALD 379, where at paragraph 19, Hely J noted that subsection 5E(3) requires a decision as to:
"(a)     Whether the applicant and the veteran were once living together.
(b)      Whether the absence of the applicant from that joint relationship resulted from the illness or infirmity of the veteran.
(c)      Whether, in the opinion of AAT the parties would have been living together in the period in which they were apart, were it not for (b).
Point (a) is uncontroversial. Points (b) and (c) would require the AAT to determine why it was that the applicant withdrew from the relationship and whether, if the absence was one which began as a result of illness, it continued for that reason alone; cf Pearce v Hornsey (1991) 29 FCR 239 at 244."
Mr Vincent submitted that using these criteria, Mr and Mrs Moore had once lived together. The absence of Mr Moore from the joint relationship resulted from his alcoholism, as had been the case in Jenkins v Repatriation Commission (supra). Had it not been for Mr Moore's alcoholism, Mr Vincent submitted that Mr and Mrs Moore would have been living together.
Mr Vincent contended that Mr Moore was not able to be lived with. The family had come to this view and that Mr Moore had to be removed from the family home. Mrs Moore and the family considered many options but Mr Moore's living in a unit close by was the best set of circumstances for all concerned. This option met the concerns that Mr Moore would be close by to Mrs Moore and she could look after him and maintain contact, yet maintain her safety.
In Pearce v Hornsey (1991) 29 FCR 239, the initial reason for the separation of the couple in that case was medical and then other matters intervened including the Applicant having another relationship. Morling J in that case concluded that Mrs Dawson must have suffered much distress in her marriage by reason of Mr Dawson's mental illness. It would have been open to the Tribunal, Morling J opined, to find that the illness caused the separation although in fact it had concluded that other factors had intervened. In Mrs Moore's case, Mr Vincent submitted that there were no intervening factors. There was no other relationship. There was only a physical relocation of Mr Moore because of illness. Paradoxically, Mr Vincent noted that the relationship strengthened particularly towards the end of Mr Moore's life, as he was not able to consume as much alcohol. His abusive, erratic behaviour receded as a result. Mr Vincent further submitted that as Mr Moore's health deteriorated, his ability to consume alcohol decreased and Mr and Mrs Moore's relationship strengthened. Mr Moore's alcoholism was in remission and when that occurred, discussions commenced about their cohabitation again. This satisfies the factors raised in Jenkins v Repatriation Commission (supra), Mr Vincent contended.
Considering section 11A of the Act, the indicia to be considered are not exhaustive and Mr Vincent submitted that each case must be considered on its individual merits. The indicia are there to help and guide decision-makers but should not be used slavishly. Mr Vincent submitted that there are multiple types of relationships in today's society and we have to consider the situation in the 1980's.
If Mr and Mrs Moore had not been previously married to each other and subsequently divorced, this case may not have got this far, Mr Vincent submitted. In all other respects, their relationship is like a de facto relationship.
Mr Vincent contended that there was an ongoing relationship between Mr and Mrs Moore and between them and the children. They held themselves out to the community as being married. Mr and Mrs Moore cared for one another and especially Mrs Moore, who showed how she cared for her husband in her actions of feeding him, cleaning him and the like.
The circumstances which led to Mr and Mrs Moore's divorce was Mr Moore's alcoholism. This also led to their second separation. After the separations they continued a meaningful but difficult relationship. Their devotion to each other was apparent to all who observed it, Mr Vincent submitted. Mrs Moore would do anything for her husband, Mr Vincent submitted. Mr Moore did not do a lot, but Mr Vincent submitted that the Tribunal should take into account his health, his alcoholism and the consequences of these matters on his debility.
Mr Vincent submitted that there was no doubt in Brian Moore's mind that Mr and Mrs Moore were still together in the emotional sense and had loving feelings for each other. Their son noted that at the time just before Mr Moore's death, there was serious consideration being given to take Mr Moore back home to live with Mrs Moore.
Mr Vincent next considered the matters not related to Mr Moore's medical condition. He noted that Mr and Mrs Moore were divorced and leading up to the divorce Mr Moore may not have been treating Mrs Moore with respect. He behaved in one way when he was drinking and on the evidence, he was clearly committed and connected to Mrs Moore and the family when he was not drinking. Mr Moore was not living with Mrs Moore but this was because Mrs Moore and the family could not cope with Mr Moore's alcohol consumption, illness and subsequent behaviour. The couple did not share their financial resources but they had not done this for many years towards the end of their married life, because Mr Moore could not be trusted with the money. Mr Vincent noted that there was no joint real estate or other joint assets. Financially, it was mainly Mrs Moore who looked after the majority of matters. Mrs Moore furnished and fitted out Mr Moore's unit in 1985 and attended to his food needs. There was also no sexual relationship between the couple but they did not have such a relationship in the years leading up to their divorce. Despite all of this Mr and Mrs Moore's relationship endured, Mr Vincent submitted. There was a commitment despite Mr Moore's illness.
After 1985, Mr Vincent submitted that Mr and Mrs Moore renewed their relationship despite living in separate accommodations as if really nothing had happened. Dr de Groot noted in a 1985 report that Mr and Mrs Moore were still in touch and on good terms, there was no mention of a divorce. In all of these circumstances, Mr Vincent submitted that there was an emotional and caring relationship. The legislation does not refer to dependant in the sense of reference to emotional dependence. The legislation in terms of subsection 11A(e) of the Act deals with commitment and is far less structured than is submitted by the Respondent.
In relation to the Respondent's submission that the relationship had broken down again, it was not for any other reason than because Mrs Moore could not cope with Mr Moore's illness. It was not put to Mrs Moore during the Tribunal hearing that she was any less attached to her husband because of the separation.

Mr Vincent contended that the Respondent was focusing only on the section 11A criteria and not focusing on the individual and special circumstances of Mr and Mrs Moore's relationship.
In relation to Exhibit R3, it is not known who wrote this document, but someone was of the view that Mr and Mrs Moore were married and therefore they had a marriage-like relationship. Whoever wrote this, was indicating that it was being held out to the community and the author understood, that Mr and Mrs Moore were married.
In relation to the issue of the person for notification or next of kin on many of the hospital documents, in 1983 and 1984, Mrs Moore was noted as being Mr Moore's wife and the person for notification. On 16 September 1986, Mrs Moore is again recorded as Mr Moore's wife. That other hospital documents recorded in the majority of cases that Mr Brian Moore was the next of kin, is not remarkable or inexplicable given that Mr Brian Moore lived across the road from the hospital and was most frequently the person who bought Mr Moore to hospital and took him home. In terms of other documents, where it is recorded by Mr Moore and indeed Mrs Moore that they are divorced, Mr Vincent submitted that that is legally what they should have recorded in those documents. Therefore, Mr Vincent contended that such records are explicable. In relation to the will of Mr Moore not including Mrs Moore as a beneficiary, Mr Vincent pointed out that this was written in 1979 at a time when their relationship was different to that of later years and especially 1986 at the time just before Mr Moore died.
Mr Vincent concluded that on the balance of probabilities, Mr and Mrs Moore lived in a marriage-like relationship. Therefore, as Mrs Moore was a partner and a member of a couple for the purposes of the Act, she was a dependant and accordingly entitled to claim a Widow's Pension. The decision under review should therefore be set aside, Mr Vincent concluded.
Ms McConnell, for the Respondent, submitted that the Tribunal needs to look at the relationship just before Mr Moore's death. The fact that they were married and then divorced in 1976 also cannot be disregarded, Ms McConnell further submitted. In 1978, Mr Moore moved in to live with Mrs Moore in Bridge Street, Uralla and they once again separated in about 1985 for the same reason as they had separated for in 1976, that is because of alcoholism.
At the time of Mr Moore's death, Mr and Mrs Moore were still living apart. Ms McConnell submitted that Mr Moore was not reporting that he was married or that he was in a de facto relationship. In relation to Dr de Groot's comment in Exhibit A6, Ms McConnell did not see that this supported in any way that Mr and Mrs Moore were having a marriage-like relationship at that time. Furthermore, considering the nineteen hospital admissions, Ms McConnell submitted that on fifteen of these admissions, Brian Moore's name was listed as the next of kin, Neville Moore was listed as next of kin on two occasions and Mrs Moore listed in 1983 and 1984.
In relation to the record of advice of Mr Moore's death (Exhibit R3), Ms McConnell submitted that this form was filled in by a Departmental Officer and that it was verbally reported to that officer that Mrs Moore was the wife of the deceased. Ms McConnell submitted that no one knows who provided this information and the Tribunal cannot really make much of it.
When the Tribunal considers Mr Moore's claim for medical treatment and pension (T26, p52), Mr Moore has recorded in October 1984 that he is divorced. Mr Moore is not holding himself out to the Department of Veterans' Affairs let alone the world, that he is married or in a marriage-like relationship, Ms McConnell contended. In another departmental form completed on 20 December 1984 by Mr Moore, he had indicated that he had no spouse and no joint assets (Exhibit R4).
Referring to the criteria of a marriage-like relationship contained within section 11A of the Act, Ms McConnell submitted that at the time of Mr Moore's death, there were no joint assets or liabilities. Mr Moore's accommodation was in his name. He looked after his own bills, there were no joint financial commitments, he was able to feed himself and there was no sharing of household expenses. Mrs Moore did not have access to his finances nor did she know anything about them. Mr and Mrs Moore were not sleeping together and they would only occasionally share meals. While Mrs Moore undertook some cooking for her husband, Ms McConnell submitted that at best their relationship was a caring, supportive relationship in that Mrs Moore undertook some housework, cooking and cleaning activities on her way to work. Ms McConnell submitted that Mrs Moore no longer wished to be with her husband the same as she had not wanted to be with him in 1976.
Ms McConnell submitted that it is irrelevant what happened earlier in Mr and Mrs Moore's married or separated lives, as what the legislation requires is that decision-makers must consider the circumstances at the time just prior to the veteran's death. Ms McConnell submitted that there was no evidence that had been given which indicated that Mrs Moore was dependent on Mr Moore. Mrs Moore lived her own life and at the highest, it was a relationship of caring but not marriage-like, Ms McConnell contended. Accordingly, Ms McConnell submitted that the criteria for a marriage-like relationship as discussed in section 11A of the Act were not met. Mr and Mrs Moore lived in different houses, they had different responsibilities and were not in any way financially connected. In all of these circumstances, Ms McConnell submitted that the Tribunal should affirm the decision under review.
Findings
The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the legislation and case law.
The Tribunal considers that the evidence provided by Mrs Moore was frank as was the evidence provided by her son, Mr Brian Moore. The Tribunal found both Mrs Moore and her son, Brian, to be witnesses of truth.
Mr and Mrs Moore's relationship was an unusual and complex relationship. It is clear from the documentary evidence and evidence provided by Mrs Moore and Brian Moore that Mr Moore had a severe alcohol problem which is variously referred in the documents to alcoholism. This condition was complicated later in life by cardiomyopathy and mitral stenosis.
From Mrs Moore's evidence and that of her son, Brian, Mr Moore's behaviour when inebriated, which he was frequently, was abusive, threatening and frightening. The Tribunal accepts Mrs Moore's evidence that she left her husband in 1976 due to her fear for her safety and that of the children. She moved to her own home which she had purchased with the proceeds of her mother's estate and did not force Mr Moore to leave the family home. There was a divorce in 1976 and after two years of separation, following a hospital admission for a serious heart condition, Mr Moore returned to live in Uralla with Mrs Moore and the children remaining at home. Mrs Moore believed that her husband had turned over a new leaf and she was hopeful for the renewal of their relationship. Unfortunately, this was not to be the case. Following a period of initial improvement when Mr Moore was not drinking and thus his behaviour was not alcohol affected, he then returned to his high level of alcohol consumption. Mr Moore once more became threatening, his health declined, he was unable to attend to his own hygiene, soiling himself and his bed linen. There were delirium episodes and both Mrs Moore and Brian Moore spoke of Mrs Moore being threatened with a knife by her husband. At this point, the Tribunal understands that the family discussed the situation that Mrs Moore was not able to cope with her husband's illness any longer and that in fact she was at risk. As Mr Brian Moore stated, he was concerned also for his father's welfare. In these circumstances options were explored as to how best to care for Mr Moore. The options included consideration of a nursing home placement or admission to a psychiatric hospital.
For various reasons, which the Tribunal accepts, Mrs Moore arranged for Mr Moore to obtain Housing Commission accommodation in a unit 500 metres away from her home. Mrs Moore's evidence, as supported by her son, was that while she did not feel safe and able to care for her husband in the home, she believed that she could continue looking after him in a safer way if he were not living under the same roof. The Tribunal finds that Mr Moore was ill and that Mrs Moore and the family came to a decision in terms of his future care which is entirely understandable. In this context, the Tribunal must determine if Mrs Moore is a dependant in terms of the provisions of the Act. The Tribunal must accordingly consider whether Mrs Moore was a partner of Mr Moore immediately before he died as provided in section 5E and section 11A of the Act.
A partner in relation to a member of a couple is the other member of the couple. A member of a couple is given meaning by subsections 5E(2), (3) and (4) of the Act. Subsection 5E(2) for the purposes of the Act and as is relevant in this case, would require that a person, in this case, Mrs Moore, not being legally married to the veteran, would then need to satisfy section 11A of the Act. For the purposes of subsection 5E(2)(b)(i), the Tribunal must refer to subsection 5E(3) of the Act. This requires that I must determine whether Mrs Moore could be treated as living with Mr Moore when not actually doing so because of Mr Moore's absence due to illness or infirmity. I must be satisfied that, if not for the absence because of illness or infirmity, then Mr and Mrs Moore would be living together during the relevant period.
The Tribunal finds that on the evidence available to it, Mr and Mrs Moore were separated because of illness and that if not for Mr Moore's illness from alcoholism, they would be together. The Tribunal has reached this view having considered the pattern of their lives which has been revealed in this case. In 1978, when Mr Moore's alcoholism was seemingly of less prominence, his behaviour improved and Mr Moore came back to live in the family home with Mrs Moore and some of the children. In 1985, Mr Moore's health deteriorated particularly in relation to his alcoholism. Once again, because of his verbally and physically threatening and abusive behaviour and, because of safety concerns, arrangements were made for Mr Moore to again leave the family home. He then lived in Housing Commission accommodation.
Just prior to Mr Moore's death in September 1986, because his other health conditions had deteriorated, he was not able to consume the high levels of alcohol he had previously consumed. As a result, although he was very unwell from other conditions, his demeanour and personality reverted to earlier times and he was much improved in his mental health. At that stage, discussions were again had with the view to Mr Moore returning to the family home with Mrs Moore. Unfortunately, before any such plans could be acted upon, Mr Moore died. The pattern revealed by this history is that when Mr Moore was well and his mental health was sound, that was a time when it was possible for him to be able to return home to live with Mrs Moore. The Tribunal accepts the evidence that just prior to his death he was separated by illness but was in fact looking towards the prospect of returning to live with Mrs Moore. Thus, the Tribunal finds that under subsection 5E(3) of the Act, Mr and Mrs Moore were separated by illness and if it had not been for that illness, they would have been living together. Having so decided, the Tribunal finds that Mrs Moore, for the purposes of subsection 5E(2)(b)(i) of the Act was a partner of Mr Moore. In so deciding, the Tribunal notes the decision in Garner v Repatriation Commission (1998) 53 ALD 297, which discussed the operation of subsection 5E(3)(b) of the Act, noting that this subsection is only applicable to deciding whether the applicant was living with the partner and not for the purposes of deciding whether they were in a marriage-like relationship.
Subsection 5E(2)(b)(iii) requires that a determination be made, in this case as to whether or not Mr and Mrs Moore lived in a marriage-like relationship as provided in section 11A of the Act. Many Tribunal and Federal Court decisions have urged decision-makers to make determinations on the facts of the individual case. This should not, in the Tribunal's view, involve a consideration of the matters in section 11A of the Act as prescriptive. The section 11A criteria are indicia of a marriage-like relationship which must be taken into account but they are not exclusive nor an exhaustive checklist. In considering marriage-like relationships, care must be taken to appreciate the extent of human diversity and the complexity with which humans organise and conduct their personal lives. Such matters have been discussed in Re Secretary, Department of Social Security and Le-Huray (1995) 36 ALD 682. Furthermore, in the Federal Court decision in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164, the Court noted that it is the responsibility of a fact finding Tribunal to have regard to all the material facts of each case, treating the matters listed in the legislation as indicators. The Tribunal should make its determination whether in this case, a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material before it. The Federal Court concluded that it is not a requirement that the Tribunal compile a check list and then proceed slavishly to comment upon each item in the list. The Tribunal should only address issues which are applicable to the decision that is under review.
The Tribunal has found that Mr and Mrs Moore were separated because of illness. They did not have joint bank accounts or assets. They had not had joint bank accounts dating back to before the 1976 divorce. Because of Mr Moore's alcoholism, he would spend his money either on alcohol or on gambling. Mrs Moore had separated the accounts to ensure the financial security for the family. Mr and Mrs Moore had separate financial arrangements explained by Mr Moore's alcohol-related illness.
Mr and Mrs Moore did not own property jointly although they had prior to their divorce. Just prior to Mr Moore's death, there were no joint assets apart from the car. This can be explained in light of Mr Moore's illness, his lack of financial means and the fact that he was renting Housing Commission accommodation. Mrs Moore had however furnished Mr Moore's unit, fitted it out with linen and household items apart from the television. In an illness-affected person, where the illness is alcoholism, it is not surprising that there are no joint assets or accounts. Furthermore, it is not unusual in today's society to have such separate arrangements. Mr and Mr Moore's living arrangements were certainly not conventional but that should not exclude consideration of whether or not these arrangements were marriage-like. The nature of the household arrangements was that Mrs Moore would do the majority of the chores, for example, cleaning, laundry and shopping. While Mr Moore undertook some light cooking and had his own bank accounts, Mrs Moore would prepare the meals for him and would see him either daily or at the very least, every two or three days.
In many conventional marriages, couples do maintain separate financial affairs. In Mr Moore's case, while Mrs Moore was not providing financial assistance or there were no joint financial arrangements, she was providing him with practical support for example by providing household items, food, cleaning his unit and also by providing ongoing emotional support. Mr Moore was not reciprocating in a practical sense because he was unwell and unable to do so. The evidence to the Tribunal was that towards the end of his life, Mr Moore was quite lucid and understood what was happening. Mr Moore would often spend his time at Mrs Moore's shop as was attested to by Brian Moore who would telephone his mother to find that this father was at the shop. The father and son would then converse.
In relation to the social aspects of Mr and Mrs Moore's relationship, statements from friends and neighbours indicate that the majority of people within the community of Uralla believed that Mr and Mrs Moore were still married. They attended social functions together. While in many documents their status is recorded as one of being divorced, that is what they were required to say. They were divorced after all in 1976. In terms of the documents recording Mr Brian Moore as the next of kin, again, this is not, in the Tribunal's mind, controversial as he was the main person who would take Mr Moore to hospital and who would take him home from hospital. Brian Moore lived across the road from the hospital and was immediately able to attend to any particular issues related to his father. Mrs Moore was not a beneficiary under the will, but the will was written in 1979, at a time when there was clearly a separation. The timing of the will is important as the Tribunal must make its finding about Mrs Moore's status just before Mr Moore died, as is required by the legislation. The Tribunal notes there were presents exchanged between Mrs Moore and Mr Moore and with the family. Mrs Moore was the informant on the advice to the Department about the death of Mr Moore and she was noted as being Mr Moore's wife.
An important question in making a determination in this matter is considering whether or not the arrangements surrounding Mr and Mrs Moore's lives were matters established for convenience. An essential element in such matters is the emotional connectedness of the people concerned. In the Tribunal's view, it is the presence of the emotional attachment between Mr and Mrs Moore which takes it out of the realm of convenience and into the realm of emotional attachment and connectedness between the two. The Tribunal considers that the evidence is present to allow it to find that Mrs Moore was committed to Mr Moore beyond the ordinary bonds that one human may have to another in providing simple neighbourly practical assistance. The Tribunal sees emotional attachment in the visits Mrs Moore made to her husband and conversely in his visits to her. Such arrangements could equally have been undertaken, in the absence of an emotional attachment between Mr and Mrs Moore, by the New South Wales Home Help Service, Meals On Wheels or any other charitable or religious institution. Mrs Moore and the family took on the responsibility for the care of Mr Moore and did not refer him to outside community assistance.
It is important, in such matters to look not just at Mrs Moore's reactions and actions but also to those of Mr Moore's. Thus the converse of the arrangements and the emotional attachment needs to be considered. Mr Moore cannot tell us how he felt or what he believed about his relationship with Mrs Moore. Objectively however, the Tribunal has evidence that Mr and Mrs Moore had lived together during periods of his being well mentally and not affected by alcohol. The Tribunal has evidence, which it accepts, that just prior to Mr Moore's death, there were discussions being held between Mrs Moore and Mr Moore about the possibility of him returning to live with Mrs Moore. This indicates some emotional attachment. Furthermore, the Tribunal has accepted evidence that Mr Moore would visit Mrs Moore at the shop or at her home and telephone regularly.
In relation to subsection 11A(d) of the Act, Mr and Mrs Moore had no sexual relationship before they divorced and this continued until Mr Moore died despite periods of cohabitation. In the context of Mr Moore's impotence and health, including his alcohol-related illness and behaviour, the Tribunal does not consider the absence of such a relationship is indicative of any lack of marriage-like relationship.

In terms of looking at the nature of Mr and Mrs Moore's commitment to each other, as dealt with in subsection 11A(e) of the Act, the Tribunal considers it important to look at the relationship to consider the marital relationship before the divorce and the ongoing relationship following the divorce when Mr and Mrs Moore lived apart as discussed by Watson J, In the Marriage of Todd (No 2) (1976) 25 FLR 260. When Mr and Mrs Moore were together, Mrs Moore did the cooking, laundry, cleaning and other household activities. This had been usual situation before the divorce in 1976 and continued to be the situation after they divorced and during periods when they cohabited. Mr Moore attended social gatherings with Mrs Moore and they held themselves out to the world to be married. The nurture of the children and the continued caring for the family was present before 1976 and subsequently. On the evidence available to the Tribunal which is accepted, it was present up to his death. In fact, in relation to Mr and Mrs Moore's daughter, Rhonda's marriage in 1986, Mr Moore had stated that he kept himself alive for this event and indeed he did, dying sometime later in that year. Mrs Moore considered Mr Moore was her husband at the time of his death and considered him to be so even though they were divorced. The Tribunal believes that had it not been for Mr Moore's death, the couple would have resumed living with each other as they had done previously.
All of the evidence available to the Tribunal does not suggest that at the time just prior to Mr Moore's death that there was a breakdown of the emotional bonds and commitment Mr and Mrs Moore had towards each other. Mr Moore was ill and was less able in a practical sense to take responsibility as a partner in a marriage-like relationship. Mrs Moore could quite easily have not had anything to do with her husband following their divorce in 1976 but she did not take that path, she chose instead to renew the relationship as she did in 1978 until 1985 when illness caused their separation once again. When circumstances changed and Mr Moore's mental health improved with the decline in his alcohol consumption, in 1986, Mrs Moore again is evidenced to be showing her level of commitment and emotional attachment by once more discussing with her husband and the family Mr Moore's moving back to live with her. In all of the circumstances, the Tribunal considers that in this particular case, under the provisions of section 11A of the Act, Mr and Mrs Moore had a marriage-like relationship.
Accordingly, in all the circumstances and taking the evidence as a totality, the Tribunal considers that Mrs Moore meets the definition of being a member of a couple as a partner. She is therefore a dependant as dealt with under Section 11 of the Act. Accordingly, under Section 13 of the Act, as a dependant, Mrs Moore is eligible to claim a pension as a dependant if all of the other criteria are met. For the purposes of this application for review, the decision under review is set aside pursuant to Section 43 of the Administrative Appeals Tribunal Act 1975 and in substitution therefore, the Tribunal decides that Mrs Moore is a dependant as provided in Section 11 of the Act.
I certify that the 85 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member
Signed:         .....................................................................................
  Ms J Purches, Associate
Date of Hearing  14 November 2001
Date of Decision  27 June 2002
Representative for the Applicant               Mr M Vincent of Counsel
Representative for the Respondent Ms T McConnell, Departmental
Advocate