Under section 17 of the MRCA, an eligible young person may continue to be considered wholly dependent on an eligible member in circumstances where the person or the eligible member has left or been removed from their home due to circumstances of family or domestic violence. This exception does not apply to VEA eligible children.
Temporary Absence
Where an individual (eligible young person or member) is temporarily absent for reasons of family or domestic violence, the person continues to be wholly dependent on the member.
Absence due to illness/infirmity
An eligible young person can continue to be considered wholly dependent on the member if the dependant’s 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 persons.
The delegate should seek appropriate evidence linking the illness or infirmity with the absence. Evidence to substantiate a separation based on 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 family or domestic violence.
If it is established that a person is absent due to illness or infirmity, then they may be considered wholly dependent 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 several 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 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 dependent 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).
Delegates are advised to read this provision together with Section 9.5.2.3 (Dependants) and Section 9.5.2.2 (Inherited Eligibility Hierarchy), which now form the complete decision making pathway for dependency and inherited eligibility under MRCAETS.