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1.17 Who is a 'child/stepchild of a deceased member' for the purposes of the SRCA?
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.
Although those terms were not defined previously, and the terms 'son'/'daughter' and 'step-son'/step-daughter' were often used in their stead, both before and after 10 December 2008, the terms 'child' and 'step-child' as used in the SRCA were and are relational terms indicating that a person is, at law, the son/step-son or daughter/step-daughter 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 a prescribed child (see 1.18)
Since 10 December 2008 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 (FLA).
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 SRCA, 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 spouse or de facto partner whether of the same or opposite sex.
- a child adopted by either the member or his or her spouse or de facto 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 referred to the discussion line for advice.
Since 10 December 2008, Section 4(1) of the SRCA 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 de facto 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 SRCA means that members of de facto couples whether of the same or opposite sex can now have stepchildren.
On the basis of the definition of step-child in the SRCA, the following are considered to be the step-child of a member or former member:
- the child of the member's de facto partner;
- 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.
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 new definitions apply to children of members who died prior to 10 December 2008
Where a person would be the child/step-child of a member (or a variation of that term, such as grandchild) under the new definitions but would not have been considered to be in that relationship under the earlier legislation, the new definition may still be relevant even though the death occurred prior to 10 December 2008. Where the deceased's child/step-child was wholly or mainly dependent on the deceased immediately before the death and on 10 December 2008 is a 'prescribed child' periodic payments will be payable while the child or step/child continues to be a prescribed child. The change in the definition does not entitle such a person to any lump sum benefits.
Stephen and Bruce were in a same-sex relationship from June 2003. Bruce had previously been married and had a child, Derek who was born in January 2003. Stephen was a member of the ADF and was killed in a defence-related accident in May 2004. At the time Stephen was killed, the SRCA did not recognise either Bruce or Derek as dependants of Stephen. Therefore, until the same-sex changes commenced on 10 December 2008 no death benefits were payable to either of them.
However on 10 December 2008, with the change in the definition of 'child' to include the child of a person's same-sex partner, Derek became a 'child of an employee' (of Stephen) for the purposes of the SRCA. As a result, because Derek was wholly dependent on Stephen at the time of his death, he is now entitled to weekly payments under subsection 17(5) until he ceases to be a prescribed child. However, as no lump sum death benefits are payable in relation to deaths which occurred prior to 10 December 2008, neither Derek nor Bruce are entitled to a lump sum benefit under subsection 17(3).
If there are any queries about how to apply these new definitions to death compensation claims in respect of deaths occurring prior to 10 December 2008 those questions should be referred to the discussion line for advice.
All children claiming dependant status must produce a copy of their birth certificate. In most cases, this will assist in proving parentage. It also, in addition to proving the identity of the claimant, shows whether the person complies with the age requirements of the 'prescribed child' definition (see 1.18).