NARELLE SALTON and COMMONWEALTH SUPERANNUATION CORPORATION
[2012] AATA 305
•21 May 2012
[2012] AATA 305
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/1766
Re
NARELLE SALTON
APPLICANT
And
COMMONWEALTH SUPERANNUATION CORPORATION
RESPONDENT
Decision
Tribunal PROFESSOR RM CREYKE, SENIOR MEMBER
Date 21 May 2012 Place Canberra The decision under review is affirmed.
...........................[sgd].............................................
PROFESSOR RM CREYKE, SENIOR MEMBER
Catchwords
SUPERANNUATION – beneficiary – commonwealth superannuation scheme – spouse benefit Widow - marital or couple relationship - whether separation due to illness - whether marital relationship would exist but for illness - Delusional Disorder (Persecutory Type) - Schizophrenia - Alcohol Dependence with Physiological Dependence - American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders IV
LEGISLATION
Acts Interpretation Act 1901 (Cth) s15AB
Defence Force Retirement and Death Benefits Act 1973 (Cth) ss 3, 6A, 6B, 39
Cases
Harris v Trustee of Commonwealth Superannuation Scheme (2005) 91 ALD 30
Harris v Trustee of Commonwealth Superannuation Scheme (2006) 151 FCR 169
Re Gray and Defence Force Retirement and Death Benefits Authority [2004] AATA 450
Re Mylan and Defence Force Retirement and Death Benefits Authority [1999] AATA 722
Re Palmer and Defence Force Retirement and Death Benefits Authority (2004) 85 ALD 148
Re Thompson and Defence Force Retirement and Death Benefit Authority (1994) 32 ALD 775Tulk v Tulk (1906) 13 ALR 45
Secondary Materials
American Psychiatric Association Diagnostic and Statistical Manual of Mental Diseases (4th edition, text revised)
Explanatory Memorandum for the Commonwealth Superannuation Schemes Amendment Bill 1992, Hansard, 14 October 1992.
REASONS FOR DECISION
PROFESSOR RM CREYKE, SENIOR MEMBER
21 May 2012
Ms Narelle Salton is the widow of Mr Hugh Dixon. Mr Dixon died on 2 October 2009. Ms Salton seeks a spouse benefit under the Defence Force Retirement and Death Benefits Act 1973 (Cth) (Act).
On 2 July 2010, a delegate of the Defence Force Retirement and Death Benefits Authority decided that Ms Salton was not entitled to the spouse benefit. That decision was affirmed on review on 1 April 2011.
Ms Salton sought further review by the Tribunal on 2 May 2011. The matter was heard in Canberra on 26 April 2012.
BACKGROUND
The following history has generally been agreed by both parties. Ms Salton and Mr Dixon were married in Western Australia on 11 August 1979. The couple had two children: Liam Garrett Dixon born in 1981 and a daughter, Karmen Barbara Dixon born in 1985, Ms Salton also had a son by a previous relationship.
Mr Dixon served in the Australian Army from 30 September 1963 to 22 January 1971, seeing overseas service in Vietnam in 1967-68. He subsequently left the Army for a short while, but rejoined the armed services in the Royal Australian Air Force and served between 1971 and 2002. He was compulsorily retired in 2002, aged 55 years. He also had postings in Hong Kong in 1980, and Malaysia, as well as various postings in Australia.
In October 1991, the couple separated and Ms Salton left the matrimonial home. She was provided with a government house in Kambah, Australian Capital Territory and she has continued to reside there. She said she stayed in Canberra so the children could finish their education in one place. From this time, Mr Dixon had various postings, and his principal residences were in barracks. However, according to Ms Salton, he would return to Canberra for weekends or other short periods.
On or about 1998, Ms Salton reverted to her maiden name. She claimed to have done so at the request of Mr Dixon. She said he was concerned about the safety of Ms Salton and the children.
After he was discharged, in October 2002, Mr Dixon acquired a motor home and from October 2002, he lived away from Canberra. His postal address from July 2002 was at his sister's address, first in Nimbin, NSW and then in Gympie, Queensland. However, from 7 January 2004, at his sister's request, he no longer used her postal address, changing it to Tamworth, NSW. He was living in Tamworth at a caravan park at the time of his death in 2009. From October 2002 Ms Salton gave evidence that neither she nor the children knew were Mr Dixon was living.
In the DFRDB Application for Retirement Pay, Commutation and Superannuation Productivity, dated 8 February 2002, Mr Dixon noted he was married, providing Ms Salton’s name and date of birth, and provided details of a bank account solely in his name for payment of pension.
In a document titled ‘My Proposed Will’, last updated on 1 March 2007, Mr Dixon referred to Ms Salton as his ‘estranged Spouse’ and stated: ‘Married 11 August 1979 in Perth WA and Separated 31 October 1991…’ The two children of his marriage were named as his primary beneficiaries, upon condition that ‘with no reconciliation process ever being implemented [Ms Salton] is declared LEGALLY DECEASED’. The draft Will further declared that neither Ms Salton, nor her son by another relationship were to share in his estate.
Mr Dixon died on 2 October 2009. Mr Dixon's death certificate showed he was married but separated. Ms Salton was listed as the ‘Informant’ of death and is described as a ‘Widow’.
A letter dated 12 November 2009 from Mr Ian Wills, Canberra Legacy, said on behalf of Ms Salton:
·Ms Salton ‘was physically separated from her husband at the time of his death’;
·The separation was due to ‘service-related medical conditions’ for which Mr Dixon had not sought treatment ‘with devastating affects [sic] on his family’;
·‘Mr Dixon spent time both living with his family and living away from home – usually on postings’;
·Following his retirement from service in March 2002, Mr Dixon ‘really started disappearing and not telling us where he was’; and
·Mr Dixon would not tell Ms Salton where he would go, but would always come back – ‘At no stage did he leave for good’.
Attached to Ms Willis’s letter was Ms Salton’s undated application for spouse benefits, submitted 13 November 2009, in which Ms Salton stated that her residential address was in Kambah, ACT, that she was legally married to Mr Dixon, and no action had been taken in the courts to dissolve the marriage. The application acknowledged that she was not living with Mr Dixon at the time of his death, but the separation was due to ‘illness or posting’.
The application also noted that Ms Salton was wholly or substantially dependant on Mr Dixon, noting that she had access to the money ‘via joint bank account until Oct 2002’, after which Mr Dixon ‘allotted money’ to her bank account. The statement noted that Mr Dixon ‘allotted about $900 pw up until two years ago and then it stopped’. Ms Salton did not have a joint bank account or a jointly owned property with Mr Dixon at the time of his death. She said that after 2004 when Mr Dixon visited he gave her cash but there was no evidence from bank statements that she received or banked otherwise unexplained sums.
At the hearing, Ms Salton acknowledged that she had been receiving child support allowance from Mr Dixon through the Child Support Agency (CSA) from 1992 until 2004 and that her reference to the money Mr Dixon allotted to her ‘until about two years ago’ was a reference to the CSA funds.
In a statutory declaration Ms Salton noted Mr Dixon’s service in Vietnam, Malaysia and Hong Kong, as well as within Australia and said Mr Dixon, throughout the marriage, showed signs of paranoia. For example, Mr Dixon would:
·Listen to her telephone conversations;
·Yell at her and accuse her of trying to ruin his career;
·When he saw a police car in the neighbourhood, Mr Dixon would think that the neighbours had called the police to arrest him;
·When the couple had a fight, Mr Dixon would often threaten to leave and become a ‘hermit’;
·If Vietnam was mentioned on TV, Mr Dixon would scream at the TV saying that he was ‘nothing [but a] baby killer that’s what they told him when he arrived back at the airport’;
·When Mr Dixon went on a posting to South Australia and Glenbrook, Ms Salton stayed in Canberra with the children, but Mr Dixon ‘could come back when he had leave, and on weekends when he was not on shift’;
·It was only when he retired from the Air Force that Mr Dixon disappeared ‘around October 2002’ when ‘We’ (that is, she and her children) received an SMS from Mr Dixon telling them ‘to remember the good times forget the bad I love you, goodbye’.
·Ms Salton and her children thought that Mr Dixon was contemplating committing suicide and tried to locate him. Karmen Dixon said they had called the police and ‘tracked him down’, and they discovered he was then living in a caravan park in Queanbeyan, NSW. Mr Dixon contacted them later that day stating that he was kicked out of the Air Force. They could not convince him that he had retired due to his age, nor could they convince him to come back home.
·After retiring from the Air Force, Mr Dixon ‘would be gone for months never telling us where he was then, then he would return’;
·Over the years, Ms Salton occupied herself by gaining year 10, 11 and 12 certificates, completing an Associate Diploma in Aged Care and doing volunteer work;
·It was only when Mr Dixon died that she discovered that he had bought an old caravan house and had been living in Tamworth;
·When cleaning Mr Dixon’s caravan upon his death, they found a letter that he had written to somebody saying that he would patrol around the caravan park to ensure that there were no Vietcong around; and
·Ms Salton said her marriage had always been sacred, she did not want to give up on her family and that she had hoped that Mr Dixon would seek medical help, but he never did.
A statutory declaration by Mr Dixon’s sister, Ms Patricia Beth Brown, dated 11 April 2010, stated:
·Over the last few years of Mr Dixon’s life it became increasingly obvious to her that her brother displayed ‘very odd behaviour’;
·Mr Dixon ‘gradually tried to distance & separate himself from his family’;
·She encouraged Mr Dixon to take an interest in his children’s lives, but he would not as he believed that they, and everyone else, were ‘out to get him’;
·She last saw Mr Dixon in June 2009 when she was shocked by his appearance – Mr Dixon had an extremely long beard and stated that he would not shave it while Kevin Rudd was the Prime Minister as he believed that the Prime Minister was personally after him; and
·It ‘became almost impossible to have a normal type of conversation with him’.
Ms Salton’s legal representative, in a letter dated 7 May 2010, said:
·Ms Salton and Mr Dixon had no joint utility accounts ‘as a consequence of Mr Dixon’s mental instability [Ms Salton] could not rely upon him as far as ongoing financial support was concerned due to the fact that he was living in a caravan park and our client living in a Government house’.
·[Ms Salton’s] residence is in her name ‘because for quite some years now Mr Dixon tended to “come and go” on a regular basis’, staying with Ms Salton ‘for a matter of months and then left for a matter of months’;
·Ms Salton ‘was employed in 2005 and has not received any Centrelink benefits as a single parent since that time’; and
·But for Mr Dixon’s mental health issues, ‘the relationship of husband and wife would have been maintained in a more normal manner’; and
·‘Mr Dixon was effectively itinerant for many years and that his movements in and out of the matrimonial home and elsewhere were based upon his persisting paranoia about not only his wife and family but consistently with the condition nearly all with whom he had any contact’.
Karmen Dixon had informed ComSuper that it would be too upsetting to draft a statement but she agreed to the report of a telephone conversation in which she had said:
·her parents separated in 1991;
·Mr Dixon was paranoid and delusional and would yell at her mother as a result eg he would yell at Ms Salton when he lost his pen, accusing her of stealing it;
·Karmen had no doubt her father suffered from a psychological condition but she was certain he never sought treatment due to his paranoia;
·After her father’s death, they found paperwork in his caravan that indicated he was very delusional, e.g. he had written to his car mechanic threatening that he would send Vietcong to his shop because the mechanic was taking a long time to service Mr Dixon’s car;
·Mr Dixon never talked about the Vietnam War, but Karmen heard that Mr Dixon had seen his best friend blow his own head off;
·Mr Dixon’s neighbours at the caravan park told them stories about her father, which disclosed that he was a completely different person to the one she used to know e.g. when they lived together Mr Dixon was a very clean person who would not go a day without a shave, but the caravan he had lived in prior to death was filthy and Mr Dixon had also grown a beard;
·She did not know whether Mr Dixon visited her mother after they separated in 1991 on a regular or irregular basis, as she did not know much about their relationship after they separated. She said they had not seen him for seven years prior to his death.
Mr Liam Dixon provided a statutory declaration for ComSuper dated 22 December 2010 in which he said:
·The marriage of his parents started falling apart in 1987-8 when he was about 6 years old when the family were in Melbourne. It was at that time that Mr Dixon’s:
… relationship with the whole family began to change. He was very distant by way of not really talking to his family and other people. He believed people were out to get him and there were a couple of times when I overheard him arguing with my mother, and in those arguments he would state that she had people out to get him just like the Vietcong were out to get him. He started drinking a lot more. He began sleeping on the couch and spending time by himself. He started collecting and hoarding lots of useless stuff and always demanded that my mother had the place looking tidy all the time.
·When they moved to Canberra in 1991 his father became even more distant and argued more with Ms Salton. ‘Things became very bad in the family. My dad would snap at the littlest things and like to spend most of his time alone’.
·As to his parents’ relationship he said:
They never divorced and remained separated but never really spoke. My father would quite often try to get information out of us regarding my mother and he would tell me and my sister that my mother was ‘out to get’ him, and there were a few times where he mentioned the Vietcong in the same sentence.
·Liam said he last saw his father in 2001 when he graduated out of the RAN Recruit School and Mr Dixon came to his graduation, however, Mr Dixon ‘didn’t stay for too long or dress in uniform’.
·Liam said he and his sister would get text messages around birthdays and Christmas, but they never saw him or knew where he lived. He did say, however, ‘Somehow we found out that he was living in a caravan in Tamworth’. He did not indicate when he learned this information.
·In relation to his father’s mental condition he said:
Although I’m not a qualified mental practitioner and, as hard as this is to say, it is my firm belief that my father did suffer from some sort of mental illness due to his service in the Defence Force and service in Vietnam. I believe my father had trust issues and he fully believed everyone was out to get him.
·Of his parents’ relationship Liam said that as far as he was aware they did not have a marital relationship at the time of Mr Dixon’s death or since their separation in 1991; his parents kept in ‘infrequent’ contact after Mr Dixon’s retirement in 2002 and he said ‘my parents did not live together at all following his discharge in 2002’; Mr Dixon did not provide any form of regular financial assistance to Ms Salton, apart from child support payments after they separated in 1991; and ‘I do believe that my father’s likely mental illness had a causal effect in relation to the breakdown of my parent’s relationship’. He said ‘I really do think he had developed [mental issues] post-Vietnam and that they surfaced round 1987-1988 if not earlier’.
RAAF personnel records between 1972 to 1980, noted that Mr Dixon was a competent and increasingly experienced operator, a hard worker, but with a tendency to get frustrated – particularly with himself - when things were not going well. He was easily upset and had a volatile nature and was a bit of a loner and did not ‘mix well’. The reports suggest that his loss of temper inhibited his promotion for a while, but by 1988 he had been promoted to flight sergeant and by 1994 he was a warrant officer. A report in November 1991 suggested Mr Dixon was ‘stressed out’ due to a forthcoming preliminary hearing about custody of the children. Another in 1992 suggested Mr Dixon was going through divorce and custody proceedings. A divorce did not eventuate. A posting preference form completed by Mr Dixon in 1997 requested he be assigned to a location which would enable him to maintain contact with his children during their teenage years.
Medical records indicated that Mr Dixon presented with testicular pain in 2000. Records from the Sydney Pain Management Centre dated 11 April 2000 refer to ‘significant levels of depressive symptomatology and interference in his daily life accompanying his ongoing testicular pain’, and on 1 June 2000 to Mr Dixon being seen by a ‘pain psychiatrist concerning his depressive symptomatology’. Clinical notes from a CT Brain scan conducted in 2009 include a section on ‘Confidential Advice to GP’ which notes ‘Past non-compliance with medications and reluctant to follow up or seek medical care’. In May 2000 he was prescribed medication for high blood pressure, antiepileptic medication, and Zoloft (an anti-depressant) at 150mg daily. There is a comment that ‘our pain psychologist … finds him to be significantly anxious and stressed due to his pain and its geography’. The Tribunal is satisfied that the reference is to Mr Dixon’s testicular pain.
Dr Patrick Morris, consultant and forensic psychiatrist, provided a post-mortem psychiatric report on Mr Dixon dated 18 November 2011. In his report he diagnosed Mr Dixon with Delusional Disorder (Persecutory type) and Alcohol Dependence with Physiological Dependence. However, he said that he would have changed this diagnosis to one of schizophrenia in the few years prior to Mr Dixon’s death. In his view Mr Dixon’s delusional disorder developed in early 1988, particularly after an incident while living in Melbourne when Mr Dixon was the victim of an assault by a group of young men. In his opinion Mr Dixon’s delusional disorder ‘significantly affected his relationship with his wife such that their marriage became untenable’.
His report noted:
Apart from the impact of the delusions or its ramifications his functioning was not markedly impaired and behaviour was not obviously odd or bizarre as indicated by the fact that he had a relatively successful Air Force career and continued in the Air Force until his retirement at the age of 55 in 2001 [sic]. It is apparent that after he left the Air Force his social functioning deteriorated, especially in the last two or three years when he was living in the caravan in Tamworth.
He also said that in his opinion:
Mr Dixon’s suspiciousness and paranoia from his Delusional Disorder would have significantly affected his ability to sustain a marital relationship. He was highly suspicious of his wife and questioned her when she went out and would misinterpret her innocent telephone calls to her family and blame her for things he would lose. His paranoid delusional beliefs would have significantly affected their relationship.
… Mr Dixon became suspicious of his children as well. He would only visit the home when his children were not there. He started to distance himself from his children from mid-1980s, especially after the incident where he was assaulted in Melbourne. For these reasons Mr Dixon’s psychiatric condition would have significantly detrimentally affected his capacity to care for his children.
… Mr Dixon’s psychiatric conditions … would have made living together as a family very difficult. … His continual suspiciousness and paranoia would have made it very difficult for his children to function in a family situation with his controlling behaviour and his paranoid beliefs. Also his anger (although mostly directed at himself) would have made it very uncomfortable for his children and for his wife.
Dr Morris diagnosed as a secondary condition that Mr Dixon was suffering from Alcohol Dependence with Physiological Dependence. Physiological Dependence is present when there is evidence of tolerance or withdrawal[1]. Dr Morris said of Mr Dixon’s drinking that it was difficult to know when it began, but Ms Salton had suggested he was drinking when she first met him in Hong Kong, and his sister said he started drinking heavily while serving in Vietnam. Dr Morris referred to an increase in Mr Dixon’s beer consumption to about 12 stubbies a day in 1980 which continued, and when they came to Canberra in 1994/1995 [sic] he was drinking about 18 stubbies a night. By 2002 his alcohol had changed to wine and he was drinking about two bottles a night.
[1] American Psychiatric Association Diagnostic and Statistical Manual of Mental Diseases (4th edition, text revised) (DSM IV – TR), 198
DSM IV – TR records that a maladaptive pattern of substance use, leading to clinically significant impairment or distress, was manifested by three or more of the following, as relevant:
·Tolerance, that is ‘a need for markedly increased amounts of the substance to achieve intoxication’;
·The substance is often taken in larger amounts or over a longer period than was intended;
·A great deal of time is spent in activities necessary to obtain the substance; and
·Important social, occupational, or recreational activities are given up or reduced because of substance use[2].
[2] Id at 197.
Impairments arising from substance abuse include marked impairment of personal relationships, and can be associated with violent or aggressive behaviour[3]. At the same time, DSM IV – TR also notes that ‘many people with Dependence … continue to maintain relationships with their families and function within their jobs’[4].
[3] Id at 206-207.
[4] Id at 217-218.
Ms Salton had provided evidence of a pattern of excessive drinking by Mr Dixon which she said she was aware of prior to their marriage in 1979. She said his daily consumption was ‘often up to 8 stubbies of beer per day’. She said he began to drink more after they were posted to Perth in 1984.
At the hearing and in her statement, Ms Salton maintained that even after 1991, particularly from 1993, Mr Dixon would come home from time to time when they resumed normal marital relations. However, she said she had no one to corroborate his visits since he insisted that the children not be told and only came home when they were not there. She also enclosed a photograph of her son with herself and Mr Dixon. There was no indication when the photograph was taken.
Impact of conditions on family
Ms Salton said she was aware from early in their marriage that at times he would lose his temper over minor matters and ‘remain angry and irrational for far longer than might be considered normal’, or become upset for reasons she did not understand. An example was his irrational anger over a broken arm to a new lounge they acquired while in Hong Kong when Mr Dixon became angry and yelled for hours, and said he deserved to be sleeping outside and did so, despite her efforts to tell him to come indoors. Another example was when she had a miscarriage in 1980, Mr Dixon started crying and saying it was his fault because he had been in Vietnam and was nothing more than ‘a child killer’.
23. Ms Salton acknowledged that she had spent a short time towards the end of 1990 in a refuge when she could not face Mr Dixon following her conviction for fraud for passing cheques for groceries when she knew there was no money in the account. She was required to perform community service for the offence. She was allocated a government house at the time and the children joined her. She said that the reason she had passed the cheques was because there was no money as she had had to spend available funds on beer for Mr Dixon. As she said if I did not buy his alcohol ‘All hell would break loose’.
She acknowledged that they had separated at this time. However, she said that by 1993, Mr Dixon started to contact her and the children again. She said she and Hugh would meet for coffee when he visited Canberra, but he was concerned that no-one find out they were meeting up. This may have been because from 1992-2004, Ms Salton was receiving child support from Mr Dixon on the basis that the couple had separated. In her statement, however, she said the couple continued to see each other on occasions and ‘eventually resumed our sexual relationship’. She also said that on one occasion the couple talked about reconciliation. Ms Salton said that during one of these trips in 1998 Mr Dixon insisted she change back to her maiden name. She said the visits and the relationship continued on this basis until 2002. She said he would come ‘when [the children] were away on school camps and he would leave before they returned. He would never tell me where he was going’.
In 2003 Ms Salton said Mr Dixon suggested they meet on the south coast. However, after a time together he suddenly left without any announcement. She had contacted him in 2004 and suggested he come to Karmen’s formal but he did not do so. Nor, according to Karmen’s statement, would he agree to contribute to the cost on the basis that this was to come out of the child support payments he was making. Ms Salton said between 2005 and 2007 she would see Mr Dixon every two to three months. When Ms Salton’s mother died he sent flowers but did not go to the funeral. Towards the end of 2007, Ms Salton said Mr Dixon’s phone calls started to decrease. According to her, Mr Dixon at this time always seemed to be going on about Mr Kevin Rudd and the Vietcong. At this time ‘he seemed totally obsessed that somebody was out to get him’.
LEGISLATION
The following provisions in the Act are relevant.
s 3 Interpretation
‘spouse’ has a meaning affected by section 6B.
s 6A Marital or couple relationship
(1) For the purposes of this Act, a person had a marital or couple 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 or partner on a permanent and bona fide domestic basis at that time.
(2) For the purposes of subsection (1), a person is to be regarded as ordinarily living with another person as that other person's husband or wife or partner 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 or partner 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 or partner 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 or partner on a permanent and bona fide domestic basis at that time;
whether or not the person was legally married to that other person. ...
(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 person 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; ...
(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 the person had a marital or couple relationship with the deceased person at the time of the death of the deceased person.
(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 or couple relationship with the deceased person; and
(b) the person did not, at the time of the death, have a marital or couple relationship with the deceased person but was legally married to the deceased person; and
(d) in the authority's opinion, the person was wholly or substantially dependent upon the deceased person at the time of the death.
Spouse's pension on death of recipient member
39(1) Where a member of the scheme who is a recipient member dies and is survived by a spouse, then, subject to sections 47 and 75, the spouse is entitled to a pension…
ISSUES
The issue is whether Ms Salton was in a marital relationship with Mr Dixon at the time of his death, as defined by section 6A of the Act, and was accordingly a ‘spouse’ for the purpose of receipt of spouse benefit under sections 3(1) and 39 of the Act.
CONSIDERATION
Section 39 of the Act provides for a spouse’s pension following the death of a recipient member. There is no dispute that Mr Dixon was a recipient member; that Ms Salton and Mr Dixon had married in 1979 and remained married at the date of his death in 2009; and that there were two children of the marriage, Liam and Karmen. It was also agreed that the couple lived together in a bona fide domestic relationship until October 1991 in Canberra when there was a separation and Ms Salton moved into a house in Kambah, ACT. Mr Dixon listed himself as separated in 2002 when he left the RAAF.
Although Ms Salton’s application for spouse benefits stated that she was wholly or substantially dependent on Mr Dixon, no joint bank account was provided to substantiate her claim that after 2004 monies were paid into her account. At the hearing she suggested that after 2004 Mr Dixon had been paying her in cash. In light of the absence of evidence of these payments, Ms Salton accepted at the hearing that although Mr Dixon had made payments to her through the Child Support Agency from 1992 to 2004, any payments by Mr Dixon to her after this time had ceased. In any event, by the time of the hearing Ms Salton’s application for review did not depend on her meeting this criterion in either section 6A(4), or section 6B(3). Her claim was that the couple were separated due to illness and but for that illness the couple would have continued to be living together on a permanent and bona fide domestic basis at the time of Mr Dixon’s death in 2009.
Section 3 of the Act states that the meaning of ‘spouse’ for the purpose of s 39 is affected by section 6B of the Act. Section 6B sets out ‘the circumstances under which a person is to be treated as a spouse who survives a deceased person, and the decisive determinant is if a person has a marital relationship with the deceased person’[5], despite the couple not living together at the relevant time. The ‘relevant time’ is the time of the member’s death[6]. Section 6A provides an exhaustive and exclusive meaning for ‘marital relationship[7]’. That finding is supported by the prefatory words to section 6A(1) ‘For the purposes of this Act’, words which are repeated in section 6B(2) in defining who is a ‘spouse’.
[5] Palmer and Defence Force Retirement and Death Benefits Authority (2004) 85 ALD 148 at [26].
[6] Ibid. See also Re Mylan and Defence Force Retirement and Death Benefits Authority [1999] AATA 722 at [16].
[7] Re Palmer and Defence Force Retirement and Death Benefits Authority (2004) 85 ALD 148 at at [27].
The relevant provision on which Ms Salton relied to establish that she remained in a marital relationship with Mr Dixon at the time of his death was section 6A(5)(b). That section provides that a person is taken to be in a marital relationship if ComSuper (formerly the Defence Force Retirement and Death Benefits Authority) is satisfied that the person would not have been separated from the other person at the time of death of the member but for ‘an absence because of special circumstances, [namely], the person’s illness’.
Counsel for Ms Salton noted that the terms of section 6A(5) provide for a distinction between a separation which is ‘temporary’ (section 6A(5)(a)) and a separation which need not be temporary (section 6A(5)(b)). That fact is relevant since Ms Salton and Mr Dixon had first separated in 1991, that is, some eighteen years prior to his death in 2009. The Tribunal accepts that section 6A(5)(b) does not require that the separation be temporary in circumstances such as long-term incarceration, hospitalisation or institutionalisation, or for reasons such as an addiction, for example, to gambling[8].
[8] Re Gray and Defence Force Retirement and Death Benefits Authority [2004] AATA 450.
The argument for Ms Salton is that Mr Dixon, at least since the late 1980s, was suffering from delusional persecutory disorder and substance abuse. These were the initial reasons Ms Salton left the marital home, and were the reasons she said she maintained the separation. The conditions worsened over time, particularly after Mr Dixon left the armed forces.
Counsel for ComSuper argued that there was no existing marital relationship. That relationship had ceased in about 1991, and with the elapse of 18 years the separation at the time of death was the normal state of affairs and was not brought about by any illness within the meaning of ‘special circumstances’. Counsel also argued that to fall within the ‘special circumstances’ exception it was necessary to establish that Mr Dixon, due to his mental illness, was not capable of forming the intention to end the marriage. That argument is based in turn on an assumption that an underlying requirement of sections 6A and 6B of the Act is that a marital or couple relationship continues ‘so long as both the spouses bona fide recognize it as subsisting’[9].
[9] Tulk v Tulk (1906) 13 ALR 45 at 46 approved in Main v Main (1949) 78 CLR 636 at 642-3.
Counsel for Ms Salton denied the need for such an intention on the basis that the cases from which the principle is drawn were family law cases which did not necessarily have any bearing on the separate statutory regime for identifying whether a person was entitled to spouse benefit for the purpose of the defence force death benefits provisions. In support of his argument that this was a special statutory scheme, counsel noted that the Act provides for the benefit to be paid in the circumstances covered by section 6B(3), that is, where a claimant, although legally married to the deceased member, was not in a marital relationship with the deceased at the time of death but was nonetheless entitled to claim a spouse benefit. In other words, counsel was arguing the Act itself acknowledges that a spouse may be entitled to a spouse benefit even when the couple was not in a marital relationship.
The Tribunal notes that the meaning of ‘marital or couple relationship’ is defined in section 6A(1) and section 6B(2) ‘for the purposes of this Act’. That means the tests for marital or couple relationships from other legislation or from the common law may not be apposite. Against that contention, the indicators of ‘ordinarily live with’ are non-exhaustively stated in section 6A(4) and those indicia replicate to an extent the indicia of a ‘couple’ relationship in family law, social security and other related cases[10]. The indicia are open-ended and, accordingly, as Conti J accepted in Harris v Trustee Commonwealth Superannuation Scheme[11] of the comparable provisions in the Superannuation Act 1976 (Cth) section 8A, there can be no hard and fast rule as to what comprises a marital relationship. For that reason, the Tribunal accepts that case law from other comparable areas of the law are relevant and rejects counsel’s contrary contentions.
[10] Ibid.
[11]Harris v Trustee of Commonwealth Superannuation Scheme (2006) 151 FCR 169 at 173 – 175.
The Tribunal also does not accept the argument that because section 6B(3) provides for circumstances where no marital relationship exists, this indicates that the marital relationship is not necessarily required in relation to the remainder of sections 6A and 6B. Section 6B(3) is a statutory and limited exception to the general requirement that to be a spouse for the purposes of section 39, a person must have been in a marital or couple relationship with the deceased member, that is, ‘ordinarily living with’ the deceased member, at the time of the member’s death. In other words, the requirement that there be a ‘marital or couple relationship’ applies to section 6A, including section 6A(5). That finding is supported by the terms of the provisions, the case law[12], and the Explanatory Memorandum for the Commonwealth Superannuation Schemes Amendment Bill 1992[13]. The Explanatory Memorandum for the amendments to the Defence Force Retirement and Death Benefits Act 1973 (Cth) stated that ‘The key criterion for eligibility of a surviving spouse in reversionary benefits under the amended legislation will be the existence of a permanent and bona fide domestic relationship’.
[12] Eg Re Thompson and Defence Force Retirement and Death Benefit Authority (1994) 32 ALD 775; Re Palmer and Defence Force Retirement and Death Benefits Authority (2004) 85 ALD 148.
[13] Explanatory Memorandum for the Commonwealth Superannuation Schemes Amendment Bill 1992, Hansard, 14 October 1992, 2160. Reference may be made to secondary legislative materials to confirm the meaning is the ordinary meaning (Acts Interpretation Act 1901 (Cth) s 15AB(1)(a)).
The Tribunal accepts this is correct. The consequence is that Ms Salton’s case must be brought within the general meaning of that concept. That finding does not avoid the Tribunal needing to decide the principal issue, namely, whether Ms Salton would have been in a marital or couple relationship with Mr Dixon but for his persecutory delusion and his alcoholism. In other words, whether the separation occurred ‘because of special circumstances (for example … the person's illness)’.
Diagnoses
The first issue is whether the diagnoses provided by Dr Morris correctly identify the conditions from which Mr Dixon was suffering.
Delusional Disorder
Dr Morris’s post-mortem diagnosis was that Mr Dixon was suffering from Delusional Disorder (Persecutory type) and Alcohol Dependence with Physiological Dependence. The American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th edn, Text Revision) (DSM IV – TR) describes the Delusional Disorder as one in which ‘the presence of one or more nonbizarre delusions … persist for at least 1 month’[14]. The diagnostician must exclude the possibility of the condition being better described as schizophrenia and being due to substance abuse or medication.[15] The report and the testimony of Dr Morris specifically exclude the possibility that Mr Dixon’s delusional disorder amounted to schizophrenia except in the final couple of years prior to Mr Dixon’s death. There was no suggestion that the delusional disorder was due to substance abuse. Rather Mr Dixon’s alcohol (substance) abuse was diagnosed as a separate and secondary condition. There was no question that Mr Dixon’s non bizarre delusions did last for more than a month.
[14] DSM IV – TR, 323
[15] Id at 329.
DSM IV-TR also notes that ‘Apart from the direct impact of the delusions, psychosocial functioning is not markedly impaired, and behaviour is neither obviously odd nor bizarre’[16]. However, DSM IV-TR also notes:
Psychosocial functioning is variable. Some individuals may appear to be relatively unimpaired in their interpersonal and occupational roles. In others, the impairment may be substantial and include low or absent occupational functioning and social isolation[17].
[16] Id at 323-4.
[17] Id at 324.
In the case of Mr Dixon, the selection of Airman Evaluation reports between 1972 and 1980, and for 1988, 1992-94, 1997 and 1998, indicate that Mr Dixon’s functioning within the RAAF was ‘not markedly impaired’. He achieved two promotions in that time, to flight sergeant and warrant officer. The most notable and consistent comments were that Mr Dixon was ‘a temperamental airman who sometimes exhibits a bad habit of voluble self-criticism’, and that he was ‘a loner’ and did not mix well. The pattern of outbursts of anger exhibited at work, support the picture of Mr Dixon’s uncontrollable anger from time to time within the family, a feature noted by Ms Salton and in the evidence of both children. However, there is no record in these workplace reports of the delusions chronicled by his family. The description in DSM IV-TR indicates that the absence of such behaviour at work does not detract from the likelihood that the diagnosis was correct.
Mr Dixon’s delusional disorder was not picked up in the available clinical records. The clinical notes in evidence at the Tribunal are for the years, 1984, 1988, 1991, 1998, 2000, 2005 and 2009. They reveal that anxiety is mentioned in 1984 and in 1991. In 1991 his anxiety was said to be in part due to custody proceedings when he was referred for counselling, and in the late 1990s, Mr Dixon was suffering from elevated blood pressure. The notes in 1998 do refer to his concern about ‘marital status’, and that he was separated from his wife. The context for this record is not clear, and Mr Dixon declined to see a social worker at the time.
In 2000, Mr Dixon was prescribed an anti-depressant, Zoloft, for a period when there are several references to depressive symptomology. The references appear, however, to relate to the pain he was experiencing at that time due to a physical problem. In other words, although there was evidence from the clinical and hospital records that Mr Dixon was suffering a level of anxiety in the relevant period, especially in the early 1990s and in 2000, the anxiety related in the early 1990s to his family situation, and in 2000 was probably due to his concerns about pain from his physical condition.
The only odd behaviour recorded was one note in 1998 when Mr Dixon was hospitalised which recorded him as saying he was thinking about using the TV remote to slash his wrists, and at the same time he had said that he ‘should run out the back paddock naked for some excitement because he was bored and sick of being in hospital’. Again, the context of this statement is unclear and the Tribunal gives it little weight. In any event, the statement does not indicate delusional belief. Otherwise there is no record of delusional disorder. This confirms that for the most part Mr Dixon was functioning adequately in the workplace throughout his working life.
DSM IV-TR also notes that Delusional Disorder (Persecutory Type) applies:
… when the central theme of the delusion involves the person’s belief that he or she is being conspired against, cheated, spied on, followed, poisoned or drugged, maliciously maligned, harassed, or obstructed in the pursuit of long-term goals.[18]
[18] Id at 325.
The evidence listed some delusions – not necessarily ‘non bizarre’ - of the kinds described. His insistence in 1998 that Ms Salton change back to her maiden name for the safety of herself and the children; the records of him saying that Ms Salton, like the Vietcong, was out to get him; that Ms Salton was trying to ruin his career; that Ms Salton had stolen his pen when he had lost it; that Kevin Rudd in person was after him; that employees in Australia Post were dishonest and hence any parcels had to be in a padded bag to better conceal the contents; and of his patrolling the campsite in Tamworth to ward off the Vietcong. Some of this behaviour appeared to be based on beliefs, some of which would be categorised as bizarre – about Ms Salton’s behaviour; some related to his own behaviour; and some related to individuals (Kevin Rudd) or organisations (Australia Post).
Ms Brown’s evidence was that Mr Dixon’s delusions emerged ‘over the last few years of his life’. For example, the Kevin Rudd reference must have been in the period when Mr Rudd was Prime Minister, that is from December 2007, and ‘the last Birthday card and Instant Scratch it ticket’ he sent her in a padded bag through Australia Post because of his beliefs in the dishonesty of Australia Post staff must have been in 2008 or 2009, just prior to Mr Dixon’s death.
44. Mr Liam Dixon’s statement said ‘My father would quite often try to get information out of us regarding my mother and he would tell me and my sister that my mother was “out to get” him’, and that there ‘were a few times when he mentioned the Vietcong in the same sentence’. It is not clear when this occurred. Liam was only ten years of age in 1991, and Karmen only 6, and as young children it is unlikely that they would observe or be able to recall a great deal prior to 1991, or be able to evaluate the behaviour. However, according to Ms Salton’s statement, from the time of the separation the children would see their father every two weeks. The Tribunal assumes that this contact may not have occurred when Mr Dixon was posted to Adelaide (from 1994) or to Glenbrook, NSW (from 1998). However, it remains possible that Mr Dixon was seeking information from the children during contact visits to his children on occasions after 1991.
Ms Karmen Dixon’s statement only refers to the pen incident as indicating her father had delusional beliefs about her mother. She otherwise said that the evidence of Mr Dixon’s living conditions from the state of his caravan after his death indicated that ‘he was a completely different person when he lived with them’ in particular in relation to his cleanliness and his personal hygiene.
Ms Salton’s statement dated 13 October 2011 indicates that it was not until the late 1980s that his listening to her telephone calls, his accusations that she was trying to ruin his career, his refusal to eat his meal because it might be poisoned, his statements that people were ‘out to get him’, and his concerns about the Vietcong, indicated more regular delusional beliefs.
Dr Morris did not identify any triggers for Mr Dixon’s delusions except possibly the assault on Mr Dixon by youths in Melbourne in 1988. This incident occurred only two years prior to the separations in late 1990 and early 1991. Dr Morris recorded Ms Salton’s reasons for leaving the marital home as Ms Salton being unable to face Mr Dixon’s anger and his increased drinking leading to the family’s financial difficulties. Dr Morris’s evidence is that Mr Dixon’s pattern worsened over time and the examples of persecutory behaviour provided suggest that his behaviour may have deteriorated after 2002 when he left the RAAF and began his itinerant lifestyle. Dr Morris notes that ‘his social functioning deteriorated’ especially in the years when he was living in Tamworth.
Given Dr Morris’s evidence, which although post-mortem is the only such evidence before the Tribunal, and the evidence of a marked change in Mr Dixon’s behaviour after 2002, as noted by Ms Brown and Karmen Dixon, the Tribunal finds that Mr Dixon’s delusional disorder did worsen from that time. In the period from 1993 when according to Ms Salton, Mr Dixon began visiting her again, and 2002 when he began is itinerant lifestyle, there was little indication from Ms Salton that his delusional disorder or Mr Dixon’s alcoholism were particular issues. His only strange conduct was his refusal, according to her testimony, to permit the children to know that he was visiting, and on one occasion an abrupt departure, without explanation, from the south coast where the two had met. Ms Salton’s evidence was that Mr Dixon even discussed reconciliation on one occasion. So, the delusional disorder observed earlier did not appear to be a significant issue for the couple in their interactions over these 9 years. The Tribunal is satisfied that Dr Morris’s diagnosis is correct, but that the condition did not, on the evidence, impact significantly on Mr Dixon’s behaviour toward Ms Salton in the period between 1993 and 2002.
Alcohol Dependence
Dr Morris gave secondary status to the condition of alcohol dependence. Nonetheless the evidence before the Tribunal that Mr Dixon was regularly drinking 8 stubbies a day from as early as the late 1970s, that by the late 1980s he was drinking 12-18 stubbies a day, and by 2002, two bottles of wine a night, indicate a lengthy and increasing reliance on alcohol.
While it is not clear on the evidence whether Mr Dixon gave up ‘important social occupational, or recreational activities’ because of his alcohol dependence, there is evidence in Liam’s statement that from the late 1980s when Mr Dixon started drinking more he ‘became distant’ and ‘shunned social contact’ including with members of his family, and that he spent more time by himself. His itinerant lifestyle, particularly after his retirement in 2002, is also indicative of his social isolation. So although there is no mention of alcoholism in any of the RAAF or related medical reports, the Tribunal is satisfied and finds that Mr Dixon was suffering from alcohol dependence which increased during the course of his marriage with Ms Salton and continued until his death.
What is not clear from the report of Dr Morris is whether his mental illness in combination with his drinking meant Mr Dixon was incapable of forming the intention to leave the marriage. In responding to this issue, the Tribunal has found helpful the passage quoted with approval by Conti J in Harris v Trustee of Commonwealth Superannuation Scheme[19] from In the Marriage of Todd (No 2) (1976) 9 ALR 401 at 403:
… ‘separation’ means more than physical separation – it involves the destruction of the marital relationship. …Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on the intention; or, alternatively, act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.[20]
[19] (2006) 151 FCR 169 at 173 – 175.
[20] Harris v Trustee of Commonwealth Superannuation Scheme (2005) 91 ALD 30 at [12].
When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.
‘Special circumstances’ (section 6A(5)(b))
The central issue in this matter is whether, but for the illnesses which Mr Dixon experienced, he would have been in a marital relationship with Ms Salton in the sense that they would have been ordinarily living together on a permanent and bona fide domestic basis at the time of his death. Findings on that issue require analysis of the couple’s behaviour and intentions during their separation, absent Mr Dixon’s conditions.
Ms Salton’s evidence was that although the marriage had gone through a difficult period in 1990-2 during the events surrounding her being charged with fraud, leading to the couple living separately from that time, she believed that from later in 1993 there was increasing contact between the two which was not inconsistent with a marital relationship. From that time she said Mr Dixon contacted her again and they began seeing each other every couple of months until about 2007, and they had resumed a sexual relationship. They were in telephone contact, and she maintained that there was even discussion of a reconciliation during that period.
The difficulty with this claim is that the contact between the two remained secret. Neither Liam nor Karmen could confirm that the two had recommenced seeing each other. Liam said ‘As far as I am aware, my mother and father did not have a marital relationship prior to his passing or from the date of their separation in 1991’. He added ‘My parents kept in infrequent contact with each other after his retirement … in 2002’. Karmen said she ‘did not know if he came back to visit her mother on a regular or irregular basis’. Further she said ‘she really did not know much about the relationship between her mother and father after their split’ in 1991. Ms Brown said Mr Dixon ‘Gradually tried to distance and separate himself from his family’.
Ms Salton explained that the reason the children did not know of their contact was Mr Dixon’s insistence that this be kept from their children and that visits occurred during weekends when the children were not at home, when they were away on school camps, or if she was visiting her mother on the NSW north coast. It is likely that the two children would on occasion go to school camps during their primary and early secondary schooling but it is unlikely that this occurred frequently. There was evidence of other, also infrequent, contacts with the immediate family over the 18 years. Mr Dixon knew about the death of Ms Salton’s mother and although he had not attended the funeral he had sent flowers; Mr Dixon and Ms Salton are photographed together on one occasion with Liam; Mr Dixon attended the graduation of Liam although he did not stay long; and Karmen advised him of the time and date of her formal in her final year, although he did not attend, nor contribute.
In addition, Ms Salton herself appeared content with the arrangements. The position in this case differs from the situation in Re Gray and Defence Force Retirement and Death Benefits Authority[21]. In that case the husband had a gambling addiction, and had left the marital home in order to go to a place where he was less likely to be exposed to opportunities to gamble. However, prior to his death, both members of the couple kept in regular contact, and the wife continued to support her husband’s efforts to cease his addiction. By contrast, Ms Salton appeared satisfied to maintain a covert relationship in which Ms Dixon appeared irregularly, and then left and her evidence did not indicate regular or supportive contact with Mr Dixon, nor an intention to resume the relationship permanently at any time. As she said ‘I felt Hugh would just come and go and it was important to me and I was confident that I would now have the ability to make sure all the bills were paid and that the beer didn’t come first’. The comment appeared to indicate that she accepted his itinerant lifestyle and was content that it would continue. This and her behaviour from 1991 when she apparently made little effort to contact Mr Dixon but was content to leave the initiation of contact to him, again suggest that she was content that the separation should continue.
[21] Re Gray and Defence Force Retirement and Death Benefits Authority [2004] AATA 450
There is also no indication from that statement that she would prefer that the two returned to living in a bona fide domestic relationship. As she also said:
Over the course of our married life I realised Hugh was at troubled soul. Ultimately our relationship had to be conducted on a distant basis. We kept in contact, on his terms, and had a mutual interest in our children’s welfare … While our marital relationship might not be considered normal they were an adaptation to our circumstances.
She also noted that ‘Hugh and I separated … because of his personality traits and the manner in which they were impacting on our children’. The expression ‘personality traits’ is ambiguous; it is capable of referring to Mr Dixon’s being a ‘loner’ and being inclined to be volatile and to lose his temper; it could also refer to his delusionary behaviour.
Nor was there any corroborating evidence of Ms Salton’s statement that Mr Dixon had at one stage discussed reconciliation. The relationship appeared to be that of a couple who were jointly comfortable with their separate existence and occasional contact. Unlike the position in Re Gray, the evidence did not indicate a couple who were both intending to resume the marital relationship once certain preconditions had been met.
This is supported by the evidence relating to Mr Dixon’s intentions, as taken from defence and medical records. The Tribunal was urged to give little weight to this evidence since none of the persons whose documentary evidence is involved appeared before the Tribunal. However, in the absence of any other information, the Tribunal is prepared to accept the evidence as a contemporaneous record of Mr Dixon’s intentions. In particular, weight has been given to documents that were completed by Mr Dixon himself. The Tribunal is prepared to allocate weight to such records since the evidence indicates that, apart from his occasional bouts of anger and loss of self-control, Mr Dixon was functioning well in his workplace and his expression of intentions in the context are likely to be reliable.
Those records indicate that in 1992 Mr Dixon said his marriage had ‘irrevocably broken up’ and at this time divorce and custody proceedings were contemplated. The Airman Evaluation Report for 1994 notes that communication with his wife was ‘less than amicable’. In 1997, there is a request in a posting preference form, in Mr Dixon’s hand to be ‘closer to his children’ in Canberra ‘in their years as teenagers’. There is a similar expression of regret recorded in a medical report in December 1998 that he has not seen enough of his children, and that he and his wife had ‘been split up for 9 years’ and in another clinical note in December 1998, that Mr Dixon ‘is currently separated from his wife’. The implication from this evidence is that up to and including 1998, Mr Dixon remained of the view that he had separated from Ms Salton. He maintained this view of the status of his relationship. In the discharge documents in 2002, Mr Dixon lists himself as married but separated.
At that point, in 2002, had reconciliation been sought by Mr Dixon, he could have returned to live with Ms Salton in Canberra. Instead, he bought a motorhome and began an itinerant lifestyle until he settled in Tamworth. That is consistent with the suggestions in several of the Airman Evaluation Reports that even in the workplace, Mr Dixon did not mix well, and was a bit of a loner, and Liam’s evidence that from the early 1990s, Mr Dixon liked ‘to spend most of his time alone’. There is no suggestion in the evidence that this preference for solitude was due to delusionary beliefs. It does, however, reinforce the implication that even without his mental illness, Mr Dixon did not want to be ‘ordinarily living with’ another person, particularly after an eleven year separation.
CONCLUSION
The Tribunal has found that Mr Dixon’s delusional disorder may have become manifest from 1988, and certainly worsened during the 7 years from his discharge in 2002 till his death in 2009. However, the evidence prior to 2002, and during the 1990s, does not enable the Tribunal to be satisfied that but for Mr Dixon’s mental conditions and his alcoholism, Mr Dixon and Ms Salton would have been likely to have been living together in a bona fide domestic relationship at the time of his death. The length of their separation, Mr Dixon’s tendencies to be a loner, and to lose his temper, personality traits not demonstrably due to Mr Dixon’s psychiatric conditions, and Ms Salton’s reconciliation to her position as a single parent also contributed to the separation. The decision under review is affirmed.
I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of
..............................[sgd]..........................................
Associate
Dated 21 May 2012
Date(s) of hearing 26 April 2012 Counsel for the Applicant Dr Max Spry Advocate for the Applicant Bruce Howes Solicitors for the Applicant Howes Kaye Halpin Counsel for the Respondent Andrew Dillon Advocate for the Respondent Meredith Allen Solicitors for the Respondent Australian Government Solicitor
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