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4.10 Weekly Payments to 'Prescribed Children'
Subsection 17(5) of the SRCA says:
a)a prescribed child was, at the date of the injury or at the date of the employee's death, wholly or mainly dependent on the employee
b)a prescribed child, being a child of the employee, was born after the employee's death, or
c)a prescribed child would, if the employee had not died, have been wholly or mainly dependent on the employee
the MRCC is liable to pay compensation at the rate of [$40]* per week and that compensation is payable to the child, or in accordance with the directions of, the MRCC for the benefit of that child from the date of the employee's death or the date of the birth of the child, whichever is the later.
* [In 1988. See MCRI-2 for latest (updated) amount]
Note that for this benefit to be payable, the prescribed child must have been 'wholly or mainly' dependent upon the employee 'if the employee had not died'. This wording also covers children of the employee who are born after the employee's death.
The coverage of prescribed children 'wholly or mainly' dependent on the employee means that eligible children will include:
- children and step-children of the employee who are living with the employee – they are deemed to be wholly dependent (see 1.13)
- children of the employee living apart from the employee who are, nevertheless, considered to have been wholly or mainly dependent on that person.
Eligibility for Weekly Payments
Both wholly and 'mainly' dependent 'prescribed children' are equally eligible for weekly payments payable under section 17(5). Refer to Part 1.18 for explanation of the 'prescribed child'.
What constitutes 'Mainly' Dependent?
The Federal Court has made it clear, when discussing the similar phrase 'wholly or substantially', that the term 'mainly dependent' means something less than 'wholly' but more than merely 'insubstantial'; the phrase could be paraphrased as 'in the main dependent upon another person'. (SDSS v Wetter (1993) 40 FCR 22).
That is, there is a gradation from not dependent, to partly dependent to mainly and finally to wholly dependent. Each of these terms must be given a meaning and each claim of dependency, where the claimant was not living with the deceased immediately before the death, must be considered against each before deciding which one applies. As the existence or quantum of compensation may depend on this decision careful analysis is required in each case
When determining whether a prescribed child was wholly or mainly dependent on the deceased, the same basic principle as that outlined in 1.16 for determining whether a person was wholly or partly dependent applies. That is, the significant question is the extent of the reliance by the child on the deceased immediately before the death, as opposed to the ability of the child or of a surviving parent to maintain the child. Whether or not this is the case and to what extent will not always be readily apparent. Thus, in Aafjes v Kearney (1976) 8 ALR 455, Mason J says:
The fact that at the date of death a daughter was being supplied with some of the necessities of life by some third person does not necessarily mean that she was not then wholly dependent for her support upon her father. Obviously enough if the assistance provided by the third person was only intermittent or casual, and unlikely to be continued in the future, it would not prevent the daughter from being wholly dependent on her father. But even if the assistance was substantial and likely to be continued, it would not necessarily have the effect that the child had to be regarded as a partial dependant of her benefactor and therefore as not wholly dependent on her father. For example, a child whose home was in the country and who lived with her grandparents while attending a school in the city would not for that reason alone cease to be wholly dependent upon her father.
As previously indicated, the application of the law is not straightforward and each case has to be considered on its own facts. However, the following examples may be of some assistance:
- a member and his partner (Stephen and Melinda) have separated and their child lives with Melinda. Stephen pays $500 per fortnight into a bank account for Melinda and the child. Melinda is a senior public servant earning a substantial salary of her own. Therefore she allows the money that Stephen pays her to accumulate so that every two years she and her daughter can go skiing. Their living expenses are fully met from Melinda's salary. In this case, following Stephen's death on service, the delegate might find that neither Melinda nor the child were even partly dependent on the member.
- a member and her partner (Margaret and Julie) are in a de facto relationship and Julie has a child from an earlier relationship. Julie and Margaret subsequently separate. Julie earns a good salary but Margaret, who still considers herself to be the child's step-parent and maintains contact with the child, pays $300 per week to ensure that the child is well looked after. Julie has agreed to use that money specifically for that purpose and it is clear from bank statements that she has kept her word. As a result she only has to use a small amount of her own income to support her child.
A year later Margaret is killed on defence service. Although Julie is earning a good salary and can easily afford to maintain her child, she was in fact only contributing a small amount of money towards the cost of maintaining her child. In this case the child would be at least mainly dependent on Margaret immediately before her death.
Where a delegate and their team leader are unable to make a decision on a particular case the details of the case should be referred to the Compensation Advice Line for advice.