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De facto

Cumberland v James Collis & Doreen Collis &c [2011] NSW WCC 117. Mr R. Caddies, Arb. 12.04.11.

38. The question is whether the applicant was a dependant within the meaning of the 1998 Act. This depends whether the applicant is “the other party to a de facto relationship with the worker” as referred to in the definition of ‘dependants’.

39. Clearly I must in determining whether the deceased and the applicant were other in a de facto relationship take into account all the circumstances of the relationship. My research indicates that no regulations were prescribed for the purposes of subsection (4) of the 1998 Act.

40. I am satisfied and it is admitted by the respondent that Madison was wholly dependent for support upon the deceased. The deceased was supporting her in various ways over and above the Child Support Agency's assessment. There is no doubt that Therese Reid was also jointly and severally liable to support the third respondent but that does not preclude a finding of total dependency by Madison also upon the deceased: See Holdlen Pty Ltd v Walsh (2000) 19 NSWCCR 629 at 642 (CA).

41. The new definition of ‘de facto partner’ is to be found in section 21C of the Interpretation Act 1987. I mention it because the case was argued on the basis of the section being in force. ...

43. As I said, I must look at all the circumstances of the relationship. The following are matters that I have had regard to in considering the position with respect to the applicant and her relationship with the deceased. It is convenient to touch on the relevant issues with respect to Tahlia at the same time.  I do so with respect to the applicant by reference to noncomprehensive checklist in section 21C of the Interpretation Act 1987. It seems to me that these factors are equally applicable to any de facto relationship as well as all and any other relevant circumstances applicable to the particular case. The following seem to be of relevance in this case:

a) The duration of the relationship . The applicant and the deceased had been together for over 8 years.

b) The nature and extent of their common residence. They each came to stay at the other’s home on a regular basis. The deceased would come to applicant’s home every Friday night and return on Monday. She would do the reverse and stay at Putney bringing the third respondent, Tahlia with her. If the applicant were off during the week she would stay with him at Putney.

c) Whether a sexual relationship exists. A sexual relationship began very early in 2002 and continued till his death. The applicant gave oral evidence and she was cross examined about this including the fact she had conceived twice but unfortunately had miscarried on each occasion. These conceptions were unplanned.This only emerged as a consequence of a submission by the third respondent's counsel that they had not tried to have children. This evidence was given by leave and the applicant was in tears as she gave this evidence. I found it very credible evidence and was of such a private nature that she had not want to disclose it to her solicitor until this challenge by the third respondent in addresses.

d) The degree of financial dependence or interdependence, and any arrangements for financial support, between them.They each provided funds in support of the other. He provided funds to assist with household purchases. He looked after all themaintenance of their applicant's house and did the mowing and gardening. The deceased helped the Tahlia buy presents and she received  presents from “Mum and  Stuart”.

e) The ownership, use and acquisition of property. Neither owned their own home.Whatever each had seemed to come from that person’s parents. I do not see this factor in this case as being determinative. The deceased clearly lived at Putney because that was where he was working on the river as a shipwright.

f) The degree of mutual commitment to a shared life.There is no doubt in my mind that the applicant and the deceased were devoted to one another. They did things as a family with both Madison and Tahlia, as evidenced by the photographs attached to the applicant’s supplementary statement. If Madison was there she was treated as part of the family by the applicant as well as by the deceased. This is confirmed by the photographs in evidence. Tahlia too was treated by the deceased as one wouldtreat a daughter.

g) The care and support of children. The applicant provided such money as he could for Tahlia, bought goods and was generous of his time with Tahlia. He acted in place of a parent towards her.

h) The performance of household duties. These were shared between them when together at each residence.

i) The reputation and public aspects of the relationship. The evidence not only of the applicant but of the deceased’s sister Louise Gaggin very definitely confirms this. Everyone in the deceased’s family knew of them and regarded them as a couple. Tahlia's aunt Ms Condon also confirms it as does Samuel Small.

44. Whilst not expressly in the above checklist, the fact of the conception of two children who miscarried is also an important matter to have regard to.


48. I have no hesitation in concluding that, having regard to those matters I have discussed above from what I termed a ‘checklist’ and the matter of the two miscarriages where the deceased was the father, that the applicant was in a de facto relationship with the deceased, that all the ingredients of the definition of de facto relationship satisfied, namely:

(a)  they had a mutual commitment to a shared life, and

(b)  their relationship was genuine and continuing, and

(c)  they lived together,and they were not married to one another.

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