13.2.2.2 Absence or Separate due to Family or Domestic Violence
Under the MRCA a person may continue to be considered wholly dependant on an eligible member in circumstances the person or the eligible member has left or been removed from their home due to circumstances of family or domestic violence (FDV).
Temporary Absence
Where an individual is temporarily absent for reasons of family or domestic violence, the person continues to be wholly dependant on the member..
Absence due to illness/infirmity
A dependent can continue to be considered wholly dependant on the member if their or the member’s absence from the home is due to an illness or infirmity. The illness or infirmity causing the absence can be either the member’s or the dependent person’s.
The delegate should seek appropriate evidence linking the illness or infirmity with the absence. Evidence to substantiate a separation on the basis of abuse caused by illness would be considered on a case by case basis. It could include a current protection order, medical (including psychological) evidence, witness statements or statutory declarations.
As an example, satisfactory evidence may include a statutory declaration outlining the reason for leaving the home supported by report from a GP which indicates person is seeking assistance for mental health following FDV.
If it is established that a person is absent due to illness or infirmity, then they may be considered wholly dependant for the period which the illness or infirmity prevents return to the home. This may be short-term due to physical illness, or indefinite for psychological reasons.
Absence under a protection order
The term ‘protection order’ encompasses a number of situations including:
- A restraining order
- A domestic violence order (DVO)
- Apprehended Violence Order (AVO)
- Apprehended Domestic Violence Order (ADVO)
- Apprehended Personal Violence Order (APVO), and,
- Child protection orders.
A protection order results generally results in an individual being unable to remain in or return to the home for a set period. This means either the member or the dependent is unable to continue to live in the home for the duration of the protection order.
As the member or dependent is unable to return to the home for the period, the absence is considered to be temporary in nature regardless of any statements regarding the likely permanency of the separation.
In these circumstances the dependent may continue to be considered wholly dependant from the date of absence for the duration of the protection order, or for a period of 24 months, whichever is greater.
This applies regardless of whether the dependent is identified as the alleged perpetrator or as the person who requires protection (noting that there are often cross claims where both individuals in a relationship are subject to orders identifying them as perpetrator).