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No.5 March 2008

Re Graff and Military Rehabilitation and Compensation Commission

TRIBUNAL AAT, Brisbane
MEMBERS Deputy President P.E Hack SC
Air Vice Marshall F.D Cox AO
DATE OF DECISION 8 February 2008
DECISION Affirmed
ISSUES Service death – compensation for dependents – definition of dependent – person in respect of whom the member stands in the position of a parent?

Facts

Squadron Leader McCarthy’s death was a “service death” as defined in s 28 of the Military Rehabilitation and Compensation Act 2004 (MRCA). The applicant, Ms Graff, was the mother of an infant (the child). She claimed that the child was a dependant of Squadron Leader McCarthy immediately before his death and thus was entitled to compensation under chapter 5 of MRCA.

A delegate of the Military Rehabilitation and Compensation Commission (MRCC) rejected the claim on the basis that the child was not a dependant of Squadron Leader McCarthy.  Thedecision was affirmed on reconsideration and Ms Graff sought further review by the Administrative Appeals Tribunal (the Tribunal).

The Law

Section 15 of the MRCA sets out who is a ‘dependant’ for the purposes of the Act. Relevantly, section 15(2)(b) states that ‘a person in respect of whom the member stands in the position ofa parent’ can be a dependant of a member.

The Tribunal was not aware of any judicial consideration of the meaning of this particular phrase, nor was any cited by either of the parties.

The Issues

The issues for consideration by the Tribunal were:

  1. was the child a dependent of Squadron Leader McCarthy immediately prior to his death? Specifically, was the child a person in respect of whom Squadron Leader McCarthy stood in the position of a parent?
  2. Was the child partly dependent upon Squadron Leader McCarthy as set out in section 15(1)(a) and (b) of MRCA?

The Tribunal’s reasoning

While there was no judicial guidance on the relevant phrase, the Tribunal noted that the similar term “in loco parentis” (in the place of a parent) had been considered by Sir George Jessel in Bennet v Bennet (1879) 10 Ch 474. The Tribunal noted two matters of importance in regard to standing in the place of a parent:

Further, the Tribunal noted that the expression required the person to undertake some part of the role, and perform some of the ordinary duties, of a parent. Thus, a person “in the position of a parent” would have some demonstrated responsibility, whether shared or otherwise, for decisions in relation to the health, well-being, education and nurture of the child. A person in the position of a parent would play a role in the care of the child and there would be a demonstrated assumption of that responsibility.

The Tribunal considered evidence that Squadron Leader McCarthy had been a close friend of the child’s father and that he took an interest in the child from the outset.  He was the child’s godfather and his deep affection was displayed by him in carrying photographs of the child and in conversations he had with others. He had discussed with Ms Graff where she intended to send the child to school, suggesting a particular private school and agreeing to pay the fees if MsGraff chose that course. There were five occasions where Squadron Leader McCarthy had contributed financially to the child’s needs giving Ms Graff sums of cash totalling $1500.  Further, Squadron Leader McCarthy had intended to put his support for the child on a more formal basis. He spoke of setting up a trust fund and changing his will to make provision for the child. Unfortunately, these matters had not been attended to prior to his death.

On the evidence before it, the Tribunal was not satisfied that Squadron Leader McCarthy performed any of the tasks, or undertook any of the roles, of a parent, or that which he did was done intending to assume parent like obligation.  Instead, the Tribunal found that those matters were more readily explicable of the basis of friendship and generosity rather than the adoption of the role of the father.  The evidence did not suggest to the Tribunal that Squadron Leader McCarthy was intending to assume a parental role; at best he appeared to have been offering to adopt a more formal role in the future. 

The Tribunal also went on to deal with the second issue – whether the child was partly dependent on Squadron Leader McCarthy.

The Tribunal noted that assistance in determining what is involved in “dependence” may be gained from the Re Buck and Comcare [1999] AATA 171, where Deputy President McDonald said:

Dependence is a concept involving ‘support and maintenance’ by one person of another (see Kauri Timber Co (Tas) Pty Ltd v Reeman; (1973) 128 CLR 177 per BarwickCJ at 179, McTiernanJ at 182). It is not limited to support and maintenance for the necessities of life: one person may be dependent on another to maintain a lavish lifestyle. … A state of dependency may exist even though the recipient receives support from other sources (e.g. social security or employment, Aafjes v Kearney (1976) 8 ALR 455 at 461 per GibbsJ). Whether one person is dependent on another is to be determined by looking at all the circumstances. The Tribunal accepts the respondent's submission that occasional gifts are not sufficient to lead to a finding of a state of dependency.

The Tribunal found that the evidence fell short of demonstrating that the child was dependent on Squadron Leader McCarthy.  While the Tribunal did accept that Squadron Leader McCarthy made frequent, but understandably irregular contributions to Ms Graff to meet the needs of the child, these were gifts of a generous godfather. The payments were not for the benefit of a dependent child, and the Tribunal did not accept that there was dependence upon these payments.

Formal decision

The Tribunal was not satisfied that the child came within the definition of ‘dependant’ and the decision was affirmed.

Editorial Note

Section 15(2)(a) of the MRCA sets out who is a ‘dependant’ for the purposes of the Act. It notes a number of family member relationships ranging from the member’s partner to half brother or sister. Please see the detailed diagram on page 116 of the Handbook for Representatives (VeRBosity Special Issue 2006) forall of the relationships covered by this section.

The main issue for consideration in the Graff case concerned section 15(2)(b) of the MRCA, which extends the qualification of a dependant to people who stand in the position of a parent.  The MRCA does not specify what is required to prove that a person is ‘standing in the position of a parent’. Doubtless this is because, as the Tribunal noted in the Graff case, there is no universal template forwhat amounts to acting in the role of a parent.

Interestingly, the doctrine of in loco parentis, noted by the Tribunal in Graff has not commonly been considered by courts internationally in relationto compensation matters, but it has primarily been applied in the context of alleged violations of students' civil liberties by educational institutions.

Nonetheless, in determining who stands in the position of a parent and, in particular, whether there is a ‘demonstrated responsibility’ as noted by the Tribunal in Graff consideration maybe given to the following factors:

The issue of whether a person is standing in the position of a parent is different from the economic dependency test in subsection 15(1) of MRCA, which is applied after consideration ofsubsection 15(2) of MRCA.

Further reading: Please see chapter 16 ‘MRCA cases: compensation for dependents” in the Handbook for Representatives atpages 114 to 123 for further detailed information including the issue of ‘dependent for economic support’.

All Practice Notes