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1.20.2 Posthumous extra-marital children vs children of a relationship


The Act, in providing that any 'child of the employee who was born alive after the employee's death' is to be held to be 'wholly dependent upon the employee' in fact creates an anomaly if that child is not also a child of the employee's spouse.

Taking Ss4(6) literally, a child from a casual sexual encounter or the child of a relationship that ended before the employee's death, who just happens to be born after the death of the employee is deemed by virtue of that late birth alone, to be wholly dependent on the deceased. This appears inequitable in that such a child might, depending on the circumstances of the case, if (by chance) born before the death, be entitled to partial support payments or none at all.

For instance, a child of the employee's marriage born before the death but living apart from the employee with the mother might, depending on the circumstances, be considered to be only partly dependent for economic support. A posthumous baby born to a mother neither wholly nor partly supported by the employee (nor living with him), would not be entitled to any compensation had the employee lived. Nevertheless, on a literal reading of the Act that extra-marital posthumous baby or the posthumous baby living apart from the deceased at the time of death is deemed to be 'wholly dependent'.

It appears that the intent of the provision at Ss4(6) is only to ensure that a posthumous child of a spouse (which the SRCA assumes to be living with the employee) would enjoy the same defined 'wholly dependent' status as its siblings, i.e. even though the employee's ability to provide economic support had disappeared before the birth. The intent of Ss4(6) appears to have been to put those children of the employee with equivalent claims for support, on an equal footing with respect to compensation. It is safe to say the intention was not the reverse.

Where the reverse appears to be the case, the matter should be referred to the discussion line for advice.

In some of these cases e.g. where the mother of an unborn child (a child allegedly of the employee) conceived that child from a casual or non spouse-like relationship – i.e. one which could not meet the 'spouse' tests listed at 1.21 – other proof of paternity is needed. DNA tests are currently the most persuasive and delegates should be reluctant to concede compensation entitlements if compelling evidence is forthcoming.

In others, e.g. where the mother of the unborn child conceived that child from a relationship (either married or de facto) that has since ceased, the delegate will need to decide on the facts of the case what proof is required.