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36.4.4 'Lived with' - S4(5), SRCA
Section 4(5) of the SRCA deems a spouse or a child of a client (also being a 'prescribed child') to be a person who was wholly dependent upon the client if the spouse or child 'lived with' the client at the time of the client's death. As a matter of policy and consistency of approach, this deeming provision is also extended to incapacity cases under S19.
In most cases, determining whether a person lived with the client at the relevant time will be a straight-forward application of the dictionary meaning of the phrase:
1. share a home with.
In the context of its use in S4(5), the phrase cannot be taken to include the other meaning of the phrase of 'putting up with' or 'tolerating' a person.
Some special cases are discussed below.
If the child or spouse is living at the same property as the client, but actually occupies a separate caravan, bedsitter or shed as their residence, it should generally be accepted that they are living with the client for the purposes of the Act.
If a spouse or child was temporarily absent from home (e.g. on an excursion, visiting friends or relatives, in hospital, etc.) at the time of the client's injury or death, they should be taken to be living with client for the purposes of the deeming clause.
Whether the absence is temporary, or has in fact resulted in the person no longer living with the client, is a matter of fact and degree. Attention should be paid to the reasons for the separation, the intentions of the parties, and the length of the separation.
A child who is attending a primary or secondary boarding school, and is expected to return to the home of the client at the end of the school term, should be treated as living with the client.
A young person, aged 18 or over, who is undertaking tertiary or TAFE studies and lives away from the home of the client in a University college or other temporary boarding accommodation, generally should not be treated as living with the client. Note, however, that this simply means that they cannot benefit from the presumption of dependency. They may still be able to prove, on the facts of the case, that they were wholly or mainly dependent on the client.
It is possible for a person to live in two homes, e.g. where the client is employed in another city from their spouse and the family maintains two households, or where the client is on sea duty and maintains a home ashore for his or her family. In such cases, a spouse or child could be treated as living with the injured client. Any such case should be carefully investigated to determine what the situation actually was at the time of the injury or death.