1.13 Spouse and Prescribed Children Resident with Member are Deemed to be Wholly Dependent

Subsection 4(5) of the SRCA says:

For the purposes of this Act, a person who, immediately before the date of an employee's death lived with the employee and was:

a)              the spouse of the employee (see 1.21), or

b)              a child of the employee, being a prescribed child (see 1.18),

shall be taken to be a person who was wholly dependent on the employee at that date.

This means – notwithstanding the usual meaning of 'dependant' – spouses and 'prescribed' children of the deceased are deemed to be 'wholly dependent' on the employee provided that the spouse or child was resident with the employee at the date of death.

That is, even if, for example, the partner was in receipt of earnings or other income which they used partly or wholly to support themselves economically, and even if this independent income exceed — ed that of the employee, the spouse would be considered to be wholly dependent.  Similarly, even if the prescribed child of the member had an independent source of income, the fact that they had been living with the deceased at the time of death automatically entitles them to the benefits that flow from being wholly dependent.

It should be noted that a child who is not living with a separated spouse but who is maintained in a boarding school at the employee's expense, should be deemed to be living with the employee, notwithstanding that child's long periods of absence from the employee's household.

In practice, a child living separately from an employee is usually one living with a spouse or former spouse separated from (and/or divorced from), that employee. Where there is joint custody/access arrangements such that the child spends 50% or more of his/her time with the employee, delegates should accept that the child still 'lives with' the employee for the purposes of S4(5).

It is important to distinguish in the case of this deeming provision between those to whom it applies i.e. to the partner and prescribed child of the deceased and those to whom it does not apply ie. to other dependants such as the deceased's mother or father or to other children within the member's household (see 1.14).

When applying 4(5), delegates should not exclude partners and children of serving ADF members posted to ships at sea for lengthy periods, deployed overseas or 'in the field' for major exercises etc. It is also common for ADF members to accept 'unaccompanied' postings to locations within Australia, for various reasons.

In cases where this 'residency' matter is in dispute in relation to a — n ADF member who was serving at the time of death, the delegate should take into consideration whether the ADF had accepted that a 'spousal' relationship existed for the purposes of housing arrangements, allowances, leave arrangements etc.