Section 49 also provides a different scheme of limitation to deal with the situation where there is more than one 'prescribed dependant', i.e. where more than one of the deceased employee's dependants has chosen to forego an SRCA entitlement, and pursue a legal action for damages.
Up to and including 9 December 2008, the term 'spouse' in the SRCA included:
It will not be necessary for many of the persons listed as possible 'dependants' by Subsection 4(1) to actually demonstrate whole or partial dependency for economic support. That is because many dependants will be deemed to have been wholly dependent by virtue of their circumstances (see 1.13). However, where the person is not deemed to be wholly dependent, they need to demonstrate either whole or partial dependency on the deceased for economic support.
Delegates are required to obtain a copy of the birth certificate of any 'prescribed child' with a SRCA entitlement. This certificate is required as a condition of payment. Therefore the age of a person subject to Ss17(5) payments should be known to the case-managing delegate, and should be prominently displayed both on the payment file and also on the Defcare process screen.
Where the child is still under 16 years old, the entitlement to this benefit need not be formally reviewed (other than to annually update the weekly amount payable).
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.
Subsection 4(6) of the SRCA says:
4(6) For the purposes of this Act, other than Subsection 17(5), a child of a deceased employee who was born alive after the employee's death shall be treated as if he or she had been born immediately before the employee's death and was wholly dependent upon the employee at the date of the employee's death.
A 'de facto partner', is defined in the SRCA as:
de facto partner of a person has the meaning given by the Acts Interpretation Act 1901.
Section 22A of the Acts Interpretation Act 1901 (AIA) defines the term as follows:
...a person is the de facto partner of another person (whether of the same sex or a different sex) if:
The Additional Death Benefit (ADB) provided under the Defence Act 1903, is regulated by Defence Determination 2009/70. This Determination entitles 'dependent children' which it defines as follows:
Dependent child, for a member, means a child of the member who is wholly or partly dependent on the member for economic support and:
a) is under 16, or
b) is 16 or more but under 25, and
This Part of the Handbook deals with the provisions of Section 49 of the SRCA.
The SRCA acts to recover money from the amount of damages awarded by a court to a dependant, when that dependent – or a group of dependents – is also entitled to compensation under S17.
Claims for compensation in respect of death can be usefully divided into two types:
