In determining whether two persons had a relationship as a couple living together on a genuine domestic basis, section 22C of the AIA requires all the circumstances of the relationship to be taken into account, including any or all of the following circumstances:
Importantly also, that section of the AIA specifies that no particular finding in relation to any of the above-listed circumstances is necessary in determining whether two persons meet the criteria for a de facto relationship. Thus a delegate cannot find that two persons are not in a de facto relationship on the basis of a particular circumstance.
Furthermore the applicant's assertions about some of the above factors would, of their nature, be hard to confirm. The judgement is up to the delegate given the known facts of the case. Where delegates are required to make such a decision, the basis of this decision should be documented by commenting on each of the above.
Section 22C of the AIA also provides that persons are to be taken to be living together on a genuine domestic basis if they are not in fact living together on a genuine domestic basis only because of:
Note that this paragraph of section 22C of the AIA might appear to have the same effect as subsection 4(4) of the SRCA in so far as it relates to the deceased's incapacity. However, 22C(4)(b)of the AIA is deeming a person to be in a de facto relationship where the only reason they are not otherwise meeting the criteria for 'de facto relationship' is the illness or infirmity of themselves or their partner. It does NOT deem the person to be wholly dependent on the deceased. The criteria in subsection 4(4) must be met for that deeming to take place (see 1.1 [2]3)
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Links
[1] https://clik.dva.gov.au/user/login?destination=node/20703%23comment-form
[2] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/death-handbook/ch-1-legislation-and-definitions/113-spouse-and-prescribed-children-resident-member-are-deemed-be-wholly-dependent