The only persons who might meet the criteria for being a dependant of a member/former member are:
A The member's:
B The member's partner's:
C A person :
This amending Act inserted definitions (which commenced on 1 July 2009) of the following terms into the MRCA, thereby changing the meaning of the term 'dependant':
The amending Act also amended the definition of 'partner' introducing the term 'de facto relationship' (see De Facto Relationships below).
From 1 July 2004 to 30 June 2009, the definition of 'partner' in section 5 [2] of the MRCA was:
partner of a member means a person of the opposite sex to the member in respect of whom at least one of the following applies:
(a) if the member is a member of the Aboriginal race of Australia or a descendant of Indigenous inhabitants of the Torres Strait Islands-the person is recognised as the member's husband or wife by the custom prevailing in the tribe or group to which the member belongs;
(b) the person is legally married to the member;
(c) the person lives with the member as his or her partner on a bona fide domestic basis although not legally married to the member.
On 1 July 2009, with the commencement of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008 (SSRA) the definition of 'partner' in the MRCA changed to:
partner of a member means a person in respect of whom at least one of the following applies:
(a) if the member is a member of the Aboriginal race of Australia or a descendant of Indigenous inhabitants of the Torres Strait Islands-the person is recognised as the member's husband or wife by the custom prevailing in the tribe or group to which the member belongs;
(b) the person is legally married to the member;
(c) a relationship between the person and the member (whether the person and the member are the same sex or different sexes) is registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 (AIA) as a kind of relationship prescribed for the purposes of that section;
(d) the person (whether of the same sex or a different sex to the member):
(i) is, in the Commission's opinion (see subsection (2)), in a de facto relationship with the member; and
(ii) is not an ancestor, descendant, brother, sister, half-brother or half-sister of the member (see subsection (3)).
5(2) For the purposes of subparagraph (c)(i) of the definition of partner in subsection (1), section 11A of the Veterans' Entitlements Act 1986 applies to the forming of the Commission's opinion about whether a person and a member are in a de facto relationship. (see under De Facto Relationships below )
5(3) For the purposes of subparagraph (c)(ii) of the definition of partner in subsection (1), a child who is, or has ever been, an adopted child of a person is taken to be the natural child of that person and the person is taken to be the natural parent of the child.
The new definition is discussed below. The primary import of the changes is that on or after 1 July 2009 persons in same-sex relationships and their families (such as children and parents) are treated exactly the same as persons in opposite-sex relationships. Determination of whether two persons were in a de facto relationship will also be facilitated where a relationship has been registered under one of the prescribed Acts as a prescribed kind of relationship.
Irrespective of whether the member and their spouse were separated at the time of the member's death, the spouse still meets the definition of 'partner'. Whether or not the spouse also meets the definition of 'wholly dependent partner' will depend on the circumstances of the case – see 7.5.2 [3].
A relationship is registered under a law of a State or Territory prescribed under section 22B of the Acts Interpretation Act 1901 as a prescribed kind of relationship if the relationship is registered under one of the following Acts as one of the specified relationships:
Civil Partnerships Act 2011 (QLD)
A relationship that is registered under the Civil Partnerships Act 2011 (QLD).
Victorian Relationships Act 2008
A relationship that is registered under the Victorian Relationships Act 2008.
Tasmanian Relationships Act 2003
A relationship that is registered as a significant relationship as defined in section 4 of the Tasmanian Relationships Act 2003.
ACT Civil Partnerships Act 2008
A relationship that is registered as a civil partnership under the ACT Civil Partnerships Act 2008.
Note that relationships registered in other countries or under other Australian registration schemes such as the City of Sydney registry cannot be recognised as conclusive evidence of partnership for the purpose of the MRCA. However, evidence of a relationship registered overseas or via another Australian scheme would be a strong indication that the people registered (whether of the same sex or a different sex) are in a partnered relationship.
Under the MRCA as it applies from 1 July 2009, a person was the partner of a member if they met both of the following two criteria:
In forming an opinion about whether a person was in a de facto relationship with a member immediately before the member's death, the MRCA requires the delegate to have regard to all the circumstances of the relationship, including the criteria set out in section 11A of the Veterans' Entitlements Act 1986 (VEA). For guidance on applying the criteria in that section see C&S Policy Library: 9.3.2 [4]/Factors Considered to Assess a De facto Relationship Exists [4]
It should be noted that section 11A [5] of the VEA does not contain any provision for deeming a person to be living with another person during a temporary absence or an absence resulting from one of the persons' illness or infirmity. This is because the VEA deals with that situation in subsection 5E(3). MRCA delegates should, however, take account of such circumstances when determining whether a person was in a de facto relationship with the deceased. Note that taking account of these circumstances is at this point of the determination process relevant only to whether the person was the deceased's partner. See 7.5.2 [3] for the provision that deems a person to have been wholly dependent on the deceased.
Irrespective of whether the delegate considers the person to have been in a de facto relationship with the member, the person will not meet the definition of 'partner' if they were the ancestor, descendant, brother, sister, half-brother or half-sister of the member. For the purposes of this requirement, where a person was adopted, that person is taken to be the natural child of the person who adopted them. That means that if the person claiming to be the member's partner had been adopted by the member's parents, they would for the purposes of the definition of 'partner' be considered to be the member's brother or sister and therefore not entitled to any benefits as a partner. They could, however, be entitled to benefits as the member's brother or sister, if they met the requirements of being wholly or partly dependent.
Where a person in a same-sex or other relationship not recognised by the MRCA prior to 1 July 2009 becomes a 'partner' for the purposes of the MRCA from that date because of the provisions of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) (Veterans' Affairs) Regulations 2008 (Same Sex Act), the compensation following death available to that person will depend on the date of death.
Where the date of death is before 1 July 2009, the following benefits are available under the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) (Veterans' Affairs) Regulations 2009, provided that the partner meets all other eligibility criteria under the MRCA for the benefits being claimed:
* Note that w — here a wholly dependent partner to whom the Same-Sex Act applies claims compensation for a death which occurred prior to 1 July 2009, the date of death is deemed, for the purpose of calculating the lump sums payable and for determining the commencement date for periodic payments, to be 1 July 2009, rather than the actual date of death.
The foll — owing benefits normally available to dependent partners are not available where the death occurred prior to 1 July 2009:
Where the death is on or after 1 July 2009 the full range of entitlements following a death will be available to the dependants of the deceased.
The ADF requires serving members to report whether or not they are married or in a de-facto relationship. There is also incentive or even necessity to do so in the shape of specific housing arrangements, allowances, welfare and social support services etc.
Therefore, in the case of the death of a serving member, delegates may settle most disputes in respect to contentions of a de facto partnered relationship by reference to the ADF unit's records.
Defence Instruction on defacto relationships
The ADF has its own administrative instruction (a Defence Instruction (General)) on defacto relationships. This is DI(G) PERS 53-1. Given the thoroughness of this DI(G) a delegate may assume, in the case of a serving member, that if the relationship is recognised by the ADF for allowance and accommodation purposes, the member's partner qualifies as a 'partner' for the purposes of the MRCA. Note, however, that irrespective of Defence's records, if a person was married to or in a prescribed registered relationship with the deceased they automatically meet the definition of 'partner'.
The instruction says, in part:
1.The Government has agreed to extend certain conditions of service entitlements to Australian Defence Force (ADF) members in interdependent relationships, including same sex couples. Accordingly, this instruction has been revised to detail the policy guidance for ADF members who wish to seek recognition of an interdependent partnership. Criteria for recognition of all other interdependent relationships are outlined in the ADF Pay and Conditions Manual (PACMAN).
2. A member seeking ADF recognition of an interdependent partnership must prove that their partner is a person who lives in a common household with the member in a bona fide, domestic, interdependent partnership, although not legally married to the member. Where the interdependent partnership is recognised by the appropriate Service authority, a member may be eligible for financial entitlements and conditions of service which apply to a member with dependants as defined in PACMAN.
Interdependent partnership criteria7
The instruction states:
7.Not every relationship is one that satisfies ADF requirements for a recognisable interdependent partnership. The core requirements to be met prior to the member completing both the application for recognition of an interdependent partnership in annex A and the Statutory Declaration, including the four items of documentary evidence, in annex B, are that the member and their partner:
a. have lived together on a permanent basis, in a bona fide, domestic, interdependent partnership as per subparagraphs 4.b. and 4.d. for a period of not less than 90 continuous days; and
b. have maintained a common household as per subparagraph 4.c.
8.The Approving Authority may decide to recognise an interdependent partnership for a member and their partner who have not lived together for 90 continuous days, if they consider that the couple:
a. are temporarily separated because of Service exigencies or unforeseen circumstances;
b. lived together on a permanent basis, in a bona fide, domestic, interdependent partnership in a common household immediately before the member was formally notified of the event resulting in the separation;
c. continue to maintain their common household; and
d. commenced living together in the common household at least 90 days before the application for recognition of the interdependent partnership was submitted.
For the purposes of paragraph 7, the four items of documentary evidence must be selected from the following alternatives (as listed in the Statutory Declaration at Annex B to DI(G) PERS 53-1):
From 1 July 2004 to 30 June 2009 the MRCA provisions dealing with a member's children were primarily expressed in terms of 'son or daughter' rather than 'child'. With the commencement of the SSRA, the MRCA introduced definitions of the terms 'child' and 'step-child' into section 5 [2]:
The terms 'son/daughter' and 'step-son/step-daughter' as used before 1 July 2009 and the terms, child' and 'step-child' as used in the MRCA from 1 July 2009 on, were and are relational terms indicating that a person is, at law, the son/step-son; daughter/step-daughter or the 'child' or 'step-child' 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 an eligible young person. (see 7.9 [13])
Since 1 July 2009 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.
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 MRCA, considered to be the child of a member or former member – note that this list is not exhaustive:
The following may also, as outlined in the Family Law Act 1975 (FLA), in certain circumstances, be the child of a member:
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 sent to Liability & Service Eligibility Policy Section for advice.
Since 1 July 2009, section 5 [2] of the MRCA 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 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 MRCA means that members of de facto couples whether of the same or opposite sex can now, for the purposes of that Act, have stepchildren.
On the basis of this definition, the following are considered to be the step-child of a member or former member:
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.
Example
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'.
Where a person would be the child/step-child of a member 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 1 July 2009. Where this is the case, the following benefits are available under the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) (Veterans' Affairs) Regulations 2009 provided that the eligible young person meets all other eligibility criteria under the MRCA for the benefits being claimed:
The following benefits normally available to dependent eligible young persons are not available where the death occurred prior to 1 July 2009:
Where the death is on or after 1 July 2009 the full range of entitlements following a death will be available to eligible young persons who were dependants of the deceased immediately before the death.
If there are any queries about how to apply these new definitions to death compensation claims in respect of deaths occurring prior to 1 July 2009 those questions should be referred to Liability & Service Eligibility Policy Section for advice.
Subsection 18(1) [17] of the MRCA provides that:
For the purposes of this Act, a child of a deceased member who is born alive after the member's death:
(a) is taken to have been wholly dependent on the member immediately before the member's death; and
(b) is taken to have been an eligible young person immediately before the member's death.
Where the posthumous child is also the child of the employee's bereaved partner, nothing as offensive as proof of paternity should be required. The relationship is to be held to prove paternity. However a birth certificate will still be required in the same way as it would be, for a child already living at the time of the death. That this certificate shows a live birth within 38 weeks of the employee's death is all that is required.
In certain other cases e.g. where the mother of an unborn child (a child allegedly of the employee) conceived that child from a casual or extra marital relationship – i.e. where the mother which could not meet the 'partner' test (see Who is a member's 'partner' for the purposes of the MRCA?) other proof of paternity is needed to establish the child is a dependant of the deceased member. DNA tests are currently the most persuasive and delegates should be reluctant to concede compensation entitlements unless compelling evidence is forthcoming.
In any other cases, e.g. where the mother of the unborn child conceived that child from a relationship (either married or de facto) that has since ceased, the delegate will need to decide on the facts of the case what proof is required.
Posthumous child conceived by IVF
Where a child is conceived by a member's partner using IVF procedures undertaken prior to a member's death and using the member's genetic material, subsection 18(1) [17] applies to that child, if born alive after the member's death.
However, where the child is conceived by a member's partner using IVF procedures undertaken after a member's death and using the member's genetic material, delegates should refer the case to Liability & Service Eligibility Policy Section for advice. The same applies if a member's partner plans to undertake IVF procedures after the member's death. Every claim made in these or similar circumstances is to be considered on its individual merits by the MRCC.
Subsection 18(2) [17] provides that:
For the purposes of this Act, if, before a deceased member's death, a member begins adoption proceedings to adopt a child, and the proceedings are finalised after the member's death, the child:
(a) is taken to have been wholly dependent on the member immediately before the member's death; and
(b) is taken to have been an eligible young person immediately before the member's death.
Where a child is adopted in these circumstances, the child will automatically be eligible for all entitlements following a death available to an eligible young person wholly dependent on the deceased at the time of death.
However a child adopted as a result of adoption proceedings commenced after the member's death are not to be recognised as dependants under section 18 [17] and are therefore not entitled to any entitlements following death in relation to the deceased member.
In addition to the member's partner and child, other relations which are specified in subsection 15(2) [18] of the MRCA, and only those, such as parents or step-parents of the member and his partner, the member's grandparents, children or step-children, grandchildren and siblings may be dependants if they meet all of the criteria.
Under section 262 [11] of the MRCA, compensation may also be payable to an “other dependant” who is a partner but does not qualify as a wholly dependent partner, who w — as partly dependent on the member or former member for economic support immediately prior to that person's death.
With the commencement of the SSRA, the MRCA replaced the terms 'father, mother, step-father, step-mother, grandfather and grandmother' with the terms 'parent, step-parent and grandparent'.
The term 'parent' is now defined by reference to the definition of 'child' as follows:
without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in this section.
Thus, in considering whether a person was the parent of a deceased member, reference should be made to the above discussion of the meaning of 'child' in the MRCA.
Since 1 July 2009, section 5 [2] of the MRCA has defined 'step-parent' as:
without limiting who is a step-parent of a person for the purposes of this Act, someone who is a de facto partner of a parent of the person is the step-parent of the person if he or she would be the person's step-parent except that he or she is not legally married to the person's parent.
The ordinary meaning of 'step-parent' is a 'spouse of a parent of a child by a former union'. According to that meaning, the de-facto partner of a member's parent (whether in a same-sex or opposite-sex relationship with that parent) could not be considered to be the step-parent of that member. However, the definition of 'step-parent' in the MRCA means that a member of a de facto couple whether of the same or opposite sex can now, for the purposes of that Act, be the step-parent of a member.
On the basis of this definition, the following are considered to be the step-parent of a member or former member:
This means that a person cannot be both the 'parent' and 'step-parent' of the one person; that is, the two terms are mutually exclusive.
Example
Susan is a member of the ADF. Her parents, John and Mary, separate and John enters into a de facto relationship with Julia. Julia becomes Susan's 'step-parent'. Mary remains Susan's parent.
Where a member died prior to 1 July 2009, no compensation is payable under section 262 [11] of the MRCA to a person who would, had the death occurred on or after 1 July 2009, have met the definition of 'dependant' in the MRCA because of the SSRA.
In addition to relations, there are two other categories of person who may meet the criteria of dependant. These are:
In determining who stands in the position of a parent consideration may be given to the following factors:
Links
[1] https://clik.dva.gov.au/user/login?destination=comment/reply/18931%23comment-form
[2] clik://LEGIS/MRC-ACTS/MRCA/S5
[3] https://clik.dva.gov.au/military-compensation-mrca-manuals-and-resources-library/policy-manual/ch-7-compensation-death/75-who-may-be-entitled-compensation-following-death-under-mrca/752-criterion-2-what-degree-dependency-did-person-who-meets-criterion-1-have-deceased
[4] https://clik.dva.gov.au/compensation-and-support-policy-library/part-9-principles-determining-pension-rate/93-relationship-status/932-member-couple/factors-considered-assess-de-facto-relationship-exists
[5] clik://LEGIS/VEA/Section 11A
[6] clik://LEGIS/MRC-ACTS/MRCA/S239
[7] clik://LEGIS/MRC-ACTS/MRCA/S245
[8] clik://LEGIS/MRC-ACTS/MRCA/S300
[9] clik://LEGIS/MRC-ACTS/MRCA/S284
[10] clik://LEGIS/MRC-ACTS/MRCA/S242
[11] clik://LEGIS/MRC-ACTS/MRCA/S262
[12] clik://LEGIS/MRC-ACTS/MRCA/S266
[13] https://clik.dva.gov.au/military-compensation-mrca-manuals-and-resources-library/policy-manual/ch-7-compensation-death/79-compensation-eligible-young-persons
[14] clik://LEGIS/MRC-ACTS/MRCA/S253
[15] clik://LEGIS/MRC-ACTS/MRCA/S251
[16] clik://LEGIS/MRC-ACTS/MRCA/S255
[17] clik://LEGIS/MRC-ACTS/MRCA/S18
[18] clik://LEGIS/MRC-ACTS/MRCA/S15