Where the partner or prescribed child of the member was not living with the member at the time of death, it is quite likely that the partner or child was either partly dependent or not dependent at all. However this is not necessarily the case and there may be cases where the partner or child had been relying either wholly or partly on financial support from the deceased for their living expenses.
It is recognised that apportioning the lump sum based on individual calculations for each claim will produce quite variable decisions between claims. In order to produce some consistency and fairness the following guidelines may be followed:
Clause 10.5.13 of Defence Determination 2000/1 under the Defence Act says:
10.5.13 ADB not payable if damages are recovered
1.This clause applies if:
a)but for this clause, SIA or ADB would be payable to a member or a dependant in respect of an injury suffered by the member, and
b)the member or dependant recovered, or recovers, damages in respect of the injury.
The purpose of the clause is the same as for Section 48 of the SRCA i.e. to ensure a dependant does not draw double benefits for an employee's death.
Until the commencement of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008 on 10 December 2008, the SRCA did not define the term “child of the employee”. That Act inserted definitions of both 'child' and 'stepchild' into section 4(1) of the SRCA.
The “Military Death Claim Compensation Special Account” was established on 23 June 2005 to administer compensation benefits paid under the SRCA and the Military Rehabilitation and Compensation Act 2004 (MRCA) to beneficiaries “that are under a legal disability”.
Prior to July 2005 Comcare managed the “SRCA Trust Account” (STA). Management of the account transferred to DVA under arrangements created by the MRCA and in accordance with the determination detailed above.
Sometimes the first Departmental/spouse contact may actually be initiated by the spouse. However where it is up to the delegate to take initiative, the initial contact with dependants living with a deceased serving member should always be performed through the unit, or alternatively by clearing that initial contact with the unit chaplain or with the Defence Community Organisation (DCO) first.
Whether or not dependants, other than the spouse or prescribed child of the member, were living with the deceased immediately before the death, those dependants are not deemed to have been wholly dependent on the basis that they had been living with the deceased. They may, however, be deemed to have been so dependent under subsection 4(4) of the SRCA or may be found on the facts to be so dependent.
Guidelines about the provision of aids and appliances can be found in chapter 10 of the Rehabilitation Guide. This chapter also includes information about:
