7.5.1 Criterion 1: Who can be a 'Dependant'?

The only persons who might meet the criteria for being a dependant of a member/former member are:

A The member's:

• partner
• parent
• step-parent
• grandparent
• child
• step-child
• grandchild
• brother
• sister
• half brother
• half sister

B The member's partner's:

• parent
• step-parent
• child
• step-child

C A person :

• who stands in the position of a parent to the member; or
• in respect of whom the member stands in the position of a parent.

Changes made to definition of' 'dependant' by Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008

This amending Act inserted definitions (which commenced on 1 July 2009) of the following terms into the MRCA, thereby changing the meaning of the term 'dependant':

• child and step-child (see Who is a member's child/step-child for the purposes of the MRCA?);
• parent which is defined by reference to the definitions of 'child' as follows:

• without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in this section.

• step-parent which is defined as follows:

• without limiting who is a step-parent of a person for the purposes of this Act, someone who is a de facto partner of a parent of the person is the step-parent of the person if he or she would be the person's step-parent except that he or she is not legally married to the person's parent.

The amending Act also amended the definition of 'partner' introducing the term 'de facto relationship' (see De Facto Relationships below).

Who is a member's 'partner' for the purposes of the MRCA?

From 1 July 2004 to 30 June 2009, the definition of 'partner' in section 5 of the MRCA was:

partner of a member means a person of the opposite sex to the member in respect of whom at least one of the following applies:

(a) if the member is a member of the Aboriginal race of Australia or a descendant of Indigenous inhabitants of the Torres Strait Islands-the person is recognised as the member's husband or wife by the custom prevailing in the tribe or group to which the member belongs;

(b) the person is legally married to the member;

(c) the person lives with the member as his or her partner on a bona fide domestic basis although not legally married to the member.

On 1 July 2009, with the commencement of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008 (SSRA) the definition of 'partner' in the MRCA changed to:

partner of a member means a person in respect of whom at least one of the following applies:

(a) if the member is a member of the Aboriginal race of Australia or a descendant of Indigenous inhabitants of the Torres Strait Islands-the person is recognised as the member's husband or wife by the custom prevailing in the tribe or group to which the member belongs;

(b) the person is legally married to the member;

(c) a relationship between the person and the member (whether the person and the member are the same sex or different sexes) is registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 (AIA) as a kind of relationship prescribed for the purposes of that section;

(d) the person (whether of the same sex or a different sex to the member):

(i) is, in the Commission's opinion (see subsection (2)), in a de facto relationship with the member; and

(ii) is not an ancestor, descendant, brother, sister, half-brother or half-sister of the member (see subsection (3)).

5(2) For the purposes of subparagraph (c)(i) of the definition of partner in subsection (1), section 11A of the Veterans' Entitlements Act 1986 applies to the forming of the Commission's opinion about whether a person and a member are in a de facto relationship. (see under De Facto Relationships below )

5(3) For the purposes of subparagraph (c)(ii) of the definition of partner in subsection (1), a child who is, or has ever been, an adopted child of a person is taken to be the natural child of that person and the person is taken to be the natural parent of the child.

The revised definition is discussed below.  The primary import of the changes is that on or after 1 July 2009 persons in same-sex relationships and their families (such as children and parents) are treated exactly the same as persons in opposite-sex relationships.  Determination of whether two persons were in a de facto relationship will also be facilitated where a relationship has been registered under one of the prescribed Acts as a prescribed kind of relationship.

Person legally married to the member

Irrespective of whether the member and their spouse were separated at the time of the member's death, the spouse still meets the definition of 'partner'.  Whether or not the spouse also meets the definition of 'wholly dependent partner' will depend on the circumstances of the case – see 7.5.2.

Registered Relationships

A relationship is registered under a law of a State or Territory prescribed under section 22B of the Acts Interpretation Act 1901 as a prescribed kind of relationship if the relationship is registered under one of the following Acts as one of the specified relationships:

Civil Partnerships Act 2011 (QLD)

        A relationship that is registered under the Civil Partnerships Act 2011 (QLD).

Victorian Relationships Act 2008

        A relationship that is registered under the Victorian Relationships Act 2008.

Tasmanian Relationships Act 2003

A relationship that is registered as a significant relationship as defined in section 4 of the Tasmanian Relationships Act 2003.

ACT Civil Partnerships Act 2008

      A relationship that is registered as a civil partnership under the ACT Civil Partnerships Act 2008.

Note that relationships registered in other countries or under other Australian registration schemes such as the City of Sydney registry cannot be recognised as conclusive evidence of partnership for the purpose of the MRCA.  However, evidence of a relationship registered overseas or via another Australian scheme would be a strong indication that the people registered (whether of the same sex or a different sex) are in a partnered relationship.

De Facto Relationships

Under the MRCA as it applies from 1 July 2009, a person was the partner of a member if they met both of the following two criteria:

• in the delegate's opinion, they were in a de facto relationship with the member; and
• they were not the ancestor, descendant, brother, sister, half-brother or half-sister of the member.

In forming an opinion about whether a person was in a de facto relationship with a member immediately before the member's death, the MRCA requires the delegate to have regard to all the circumstances of the relationship, including the criteria set out in section 11A of the Veterans' Entitlements Act 1986 (VEA).  For guidance on applying the criteria in that section see C&S Policy Library: 9.3.2/Factors Considered to Assess a De facto Relationship Exists

It should be noted that section 11A of the VEA does not contain any provision for deeming a person to be living with another person during a temporary absence or an absence resulting from one of the persons' illness or infirmity.  This is because the VEA deals with that situation in subsection 5E(3).  MRCA delegates should, however, take account of such circumstances when determining whether a person was in a de facto relationship with the deceased.  Note that taking account of these circumstances is at this point of the determination process relevant only to whether the person was the deceased's partner.  See 7.5.2 for the provision that deems a person to have been wholly dependent on the deceased.

Irrespective of whether the delegate considers the person to have been in a de facto relationship with the member, the person will not meet the definition of 'partner' if they were the ancestor, descendant, brother, sister, half-brother or half-sister of the member.  For the purposes of this requirement, where a person was adopted, that person is taken to be the natural child of the person who adopted them.  That means that if the person claiming to be the member's partner had been adopted by the member's parents, they would for the purposes of the definition of 'partner' be considered to be the member's brother or sister and therefore not entitled to any benefits as a partner.  They could, however, be entitled to benefits as the member's brother or sister, if they met the requirements of being wholly or partly dependent.

How the revised definition of 'partner' applies to partners of members who died prior to 1 July 2009

Where a person in a same-sex or other relationship not recognised by the MRCA prior to 1 July 2009 becomes a 'partner' for the purposes of the MRCA from that date because of the provisions of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) (Veterans' Affairs) Regulations 2008 (Same Sex Act), the compensation following death available to that person will depend on the date of death.

Where the date of death is before 1 July 2009, the following benefits are available under the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) (Veterans' Affairs) Regulations  2009, provided that the partner meets all other eligibility criteria under the MRCA for the benefits being claimed:

• wholly dependent partner periodic payment or lump sum equivalent under paragraph 234(1)(b)*;
• additional compensation following death under paragraph 234(1)(a)*;
• financial advice under section 239, but only for advice received on or after 1 July 2009;
• MRCA Supplement payments for wholly dependent partners under sections 245 and 300, but from no earlier than 1 July 2009;
• treatment under section 284, but only for treatment provided on or after 1 July 2009.

* Note that where a wholly dependent partner to whom the Same-Sex Act applies claims compensation for a death which occurred prior to 1 July 2009, the date of death is deemed, for the purpose of calculating the lump sums payable and for determining the commencement date for periodic payments, to be 1 July 2009, rather than the actual date of death.

The following benefits normally available to dependent partners are not available where the death occurred prior to 1 July 2009:

• bereavement payments under section 242;
• 'other dependant' lump sums under section 262, in a case where the partner was partly, but not wholly, dependent on the deceased;
• funeral benefits under section 266.

Where the death is on or after 1 July 2009 the full range of entitlements following a death will be available to the dependants of the deceased.

Recognition by Department of Defence of de facto relationships

De Facto and 'bona fide Domestic Basis' – serving members

The ADF requires serving members to report whether or not they are married or in a de-facto relationship.  There is also incentive or even necessity to do so in the shape of specific housing arrangements, allowances, welfare and social support services etc.

Therefore, in the case of the death of a serving member, delegates may settle most disputes in respect to contentions of a de facto partnered relationship by submitting a request for information to the Department of Defence via the SAM.

The ADF Pay and Conditions Manual (PACMAN) provides information - see 'Who Defence recognises as dependants', and 'Dependants and categorisation'. 

In the case of a serving member, if the relationship is recognised by the ADF for allowance and accommodation purposes, the member's partner qualifies as a 'partner' for the purposes of the MRCA.  Note, however, that irrespective of Defence's records, if a person was married to or in a prescribed registered relationship with the deceased they automatically meet the definition of 'partner'.

Who is a member's child/step-child for the purposes of the MRCA?

From 1 July 2004 to 30 June 2009 the MRCA provisions dealing with a member's children were primarily expressed in terms of 'son or daughter' rather than 'child'.  With the commencement of the SSRA, the MRCA introduced definitions of the terms 'child' and 'step-child' into section 5:

The terms 'son/daughter' and 'step-son/step-daughter' as used before 1 July 2009 and the terms, child' and 'step-child' as used in the MRCA from 1 July 2009 on, were and are relational terms indicating that a person is, at law, the son/step-son; daughter/step-daughter or the 'child' or 'step-child' of another person.  The person's age has no bearing on whether they are in the required relationship.  The person's age is only significant where they are required by the Act to be both the child/step-child of a member and an eligible young person. (see 7.9)

Since 1 July 2009 the term 'child' has been defined as follows:

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

The words “without limiting who is a child of a person for the purposes of this Act” in the definition of 'child' make it clear that the definition of that term in the FLA does not replace, but expands the generally understood meaning of that term which is:

the biological son or daughter of the member provided that the person has not been adopted by another person.

On the basis of the definition of child in the FLA, the following are also, for the purposes of the MRCA, considered to be the child of a member or former member – note that this list is not exhaustive:

• a child adopted by the member and his or her partner whether of the same or opposite sex.
• a child adopted by either the member or his or her partner whether of the same or opposite sex with the consent of the other.
• a child declared by the Family Court to be the child of a member (the Family Law Court may under section 69VA of the FLA, decide the issue of parentage.  If the Court makes a declaration about parentage, that declaration is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.)

The following may also, as outlined in the Family Law Act 1975 (FLA), in certain circumstances, be the child of a member:

• a child born as a result of artificial conception procedures (section 60H of the FLA);
• a child born under surrogacy arrangements (section 60HB of the FLA).

Where a delegate is considering a claim from a person claiming to be the child of a deceased member and the child is known to have been conceived using artificial conception procedures or under surrogacy arrangements, the matter should be sent to Benefits & Payments Policy Section for advice.

Since 1 July 2009, section 5 of the MRCA has defined 'stepchild' as:

stepchild: without limiting who is a stepchild of a person for the purposes of this Act, someone who is a child of a partner of the person is the stepchild of the person if he or she would be the person's stepchild except that the person is not legally married to the partner.

The ordinary meaning of 'stepchild' is a 'child of a husband or wife by a former union'.  According to that meaning, the child of one member of a de facto couple (whether in a same-sex or opposite-sex relationship) could not be considered to be the stepchild of the other member of the couple.  However, the definition of 'stepchild' in the MRCA means that members of de facto couples whether of the same or opposite sex can now, for the purposes of that Act, have stepchildren.

On the basis of this definition, the following are considered to be the step-child of a member or former member:

• the child of the member's de facto partner (this is a person to whom either paragraph (ba) or paragraph (c) of the definition of 'partner' applies);
• the child of the member's husband or wife.

This means that it is possible for a person to be both the 'child' of one person and the 'step-child' of another person.  It also means that a person cannot be both the 'child' and 'step-child' of the one person; that is, the two terms are mutually exclusive.

Example

John and Mary have a daughter, Susan.  John and Mary separate and John enters into a de facto relationship with Julia.  Susan becomes Julia's 'stepchild', but remains Mary's 'child'.

How the revised definitions apply to children of members who died prior to 1 July 2009

Where a person would be the child/step-child of a member under the revised definitions but would not have been considered to be in that relationship under the earlier legislation, the revised definition may still be relevant even though the death occurred prior to 1 July 2009.  Where this is the case, the following benefits are available under the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) (Veterans' Affairs) Regulations 2009 provided that the eligible young person meets all other eligibility criteria under the MRCA for the benefits being claimed:

• periodic payments under section 253 which are payable on and from 1 July 2009 only;
• allowances payable to eligible young persons under the Military Rehabilitation and Compensation Education and Training Scheme – these are payable on and from 1 July 2009 only;
• treatment under section 284, but only for treatment provided on or after 1 July 2009;
• MRCA Supplement under section 300, but from no earlier than 1 July 2009

The following benefits normally available to dependent eligible young persons are not available where the death occurred prior to 1 July 2009:

• eligible young person lump sum payments under section 251;
• bereavement payments under section 255;
• funeral benefits under section 266;

Where the death is on or after 1 July 2009 the full range of entitlements following a death will be available to eligible young persons who were dependants of the deceased immediately before the death.

If there are any queries about how to apply these new definitions to death compensation claims in respect of deaths occurring prior to 1 July 2009 those questions should be referred to Benefits & Payments Policy Section for advice.

Child of a member born after the death of the member

Subsection 18(1) of the MRCA provides that:

For the purposes of this Act, a child of a deceased member who is born alive after the member's death:

(a) is taken to have been wholly dependent on the member immediately before the member's death; and

(b) is taken to have been an eligible young person immediately before the member's death.

Where the posthumous child is also the child of the employee's bereaved partner, nothing as offensive as proof of paternity should be required. The relationship is to be held to prove paternity. However a birth certificate will still be required in the same way as it would be, for a child already living at the time of the death. That this certificate shows a live birth within 38 weeks of the employee's death is all that is required.

In certain other cases e.g. where the mother of an unborn child (a child allegedly of the employee) conceived that child from a casual or extra marital relationship – i.e. where the mother which could not meet the 'partner' test (see Who is a member's 'partner' for the purposes of the MRCA?) other proof of paternity is needed to establish the child is a dependant of the deceased member. DNA tests are currently the most persuasive and delegates should be reluctant to concede compensation entitlements unless compelling evidence is forthcoming.

In any other cases, 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.

Posthumous child conceived by IVF

Where a child is conceived by a member's partner using IVF procedures undertaken prior to a member's death and using the member's genetic material, subsection 18(1) applies to that child, if born alive after the member's death.

However, where the child is conceived by a member's partner using IVF procedures undertaken after a member's death and using the member's genetic material, delegates should refer the case to Benefits & Payments Policy Section for advice.  The same applies if a member's partner plans to undertake IVF procedures after the member's death.  

Child of a member adopted after the member's death

Subsection 18(2) provides that:

For the purposes of this Act, if, before a deceased member's death, a member begins adoption proceedings to adopt a child, and the proceedings are finalised after the member's death, the child:

(a) is taken to have been wholly dependent on the member immediately before the member's death; and

(b) is taken to have been an eligible young person immediately before the member's death.

Where a child is adopted in these circumstances, the child will automatically be eligible for all entitlements following a death available to an eligible young person wholly dependent on the deceased at the time of death.

However a child adopted as a result of adoption proceedings commenced after the member's death are not to be recognised as dependants under section 18 and are therefore not entitled to any entitlements following death in relation to the deceased member.

Who else can be a member's dependant?

In addition to the member's partner and child, other relations which are specified in subsection 15(2) of the MRCA, and only those, such as parents or step-parents of the member and his partner, the member's grandparents, children or step-children, grandchildren and siblings may be dependants if they meet all of the criteria.

Under section 262 of the MRCA, compensation may also be payable to an “other dependant” who is a partner but does not qualify as a wholly dependent partner, who was partly dependent on the member or former member for economic support immediately prior to that person's death.

With the commencement of the SSRA, the MRCA replaced the terms 'father, mother, step-father, step-mother, grandfather and grandmother' with the terms 'parent, step-parent and grandparent'.

The term 'parent' is now defined by reference to the definition of 'child' as follows:

without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in this section.

Thus, in considering whether a person was the parent of a deceased member, reference should be made to the above discussion of the meaning of 'child' in the MRCA.

Since 1 July 2009, section 5 of the MRCA has defined 'step-parent' as:

without limiting who is a step-parent of a person for the purposes of this Act, someone who is a de facto partner of a parent of the person is the step-parent of the person if he or she would be the person's step-parent except that he or she is not legally married to the person's parent.

The ordinary meaning of 'step-parent' is a 'spouse of a parent of a child by a former union'.  According to that meaning, the de-facto partner of a member's parent (whether in a same-sex or opposite-sex relationship with that parent) could not be considered to be the step-parent of that member.  However, the definition of 'step-parent' in the MRCA means that a member of a de facto couple whether of the same or opposite sex can now, for the purposes of that Act, be the step-parent of a member.

On the basis of this definition, the following are considered to be the step-parent of a member or former member:

• the de-facto partner of the member's parent; and 
• a person who is not the natural parent of the member but who is the husband or wife of one of the member's parents.

This means that a person cannot be both the 'parent' and 'step-parent' of the one person; that is, the two terms are mutually exclusive.

Example

Susan is a member of the ADF. Her parents, John and Mary, separate and John enters into a de facto relationship with Julia.  Julia becomes Susan's 'step-parent'.  Mary remains Susan's parent.

How the revised definitions apply to 'other dependants' of members who died prior to 1 July 2009

Where a member died prior to 1 July 2009, no compensation is payable under section 262 of the MRCA to a person who would, had the death occurred on or after 1 July 2009, have met the definition of 'dependant' in the MRCA because of the SSRA.

In addition to relations, there are two other categories of person who may meet the criteria of dependant.  These are:

• A person in respect of whom the member stands in the position of a parent; and
• A person who stands in the position of a parent to the member.

In determining who stands in the position of a parent consideration may be given to the following factors:

• was there a personal relationship and emotional bond as though it was one of parent and child?
• were the natural or adoptive parents fulfilling their roles as parents at the relevant times?
• who bore the main parental responsibility for the child in terms of providing the necessary social capital (including housing, education, economic and emotional support) to the child?  Note that this is different from the economic dependency test in subsection 15(1) which is applied after satisfaction of subsection 15(2)).
• who had custody of the child at the relevant times?