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Dependant spouse

Salkeld v Coastal Commercial Flooring PL [2011] NSW WCC 460. Mr Brown, Arb.

33. It was agreed that for the purposes of claim in the current Application the issue as to whether Karen Salkeld was mainly dependent upon the applicant for support as at 1 January 2011 is one that falls to be determined after a close examination of the particular facts and circumstances particular to that relationship: Coles Myer Ltd v Rudzinski [2006] NSWCA 161.

The issue of dependency is one informed from the perspective of the person alleged to be dependent: Tilecorp Pty Ltd v Sheppard [2008] NSWWCCPD 97.

The applicant bears the onus and the test is not satisfied by simply having regard only to the income differential of the respective partners. That is, whether Karen Salkeld is found to be mainly dependent for support from the applicant includes a consideration of the income being received from the applicant, it is not just a simple examination of the relative incomes of the applicant and his spouse: Spencely v Deniliquin Shire Council (2001) 22 NSWCCR 7. ...

35. In Rudzinski, the Court of Appeal considered the meaning of “totally or mainly dependent” in section 37(4) of the 1987 Act, in application to whether a child was dependent as claimed.

In Rudzinski, the Court of Appeal (per McColl JA) noted that in an earlier decision of that court (per Meagher JA) in McCafferty’s Management Pty Ltd v Pimlott (1995) 12 NSWCCR 360, it was held that a child may in a particular case be totally dependent upon one parent for support notwithstanding that he or she is totally dependent also upon the other parent.

Reference was also made to another decision of that court, in Holdlen PL v Walsh [2000] NSWCA 87 in which Giles JA held that “total dependence is not incompatible with the receipt of support from someone else”. ...

37. The decision of the Compensation Court (per Walker J) in Claydon v Jayton Pty Ltd t/as Stocktrans (1999) 18 NSWCCR 381 (Claydon) is also of some relevance. In that matter the employer sought to argue that “because both the applicant and his partner are on Social Security benefits she cannot be totally or mainly dependent upon him within the meaning of s37(4)”. 

38. In Claydon Walker J rejected the employer’s argument, and at [78] – [84] referred to a series of decisions in which similar circumstances had been considered:

“78. The respondent submits that because both the applicant and his partner are on Social Security benefits she cannot be totally or mainly dependent upon him within the meaning of s 37(4).

79. This is a popular submission but finds no favour that I can determine in the decided cases on the matter. In Fatovic v Standard Telephones & Cable Pty Ltd, NSWCC, No. 2892/89, 4 March 1991, unreported [Fatovic], his Honour Judge Burke dealt with a submission that an increment to an invalid pension to include a benefit for children had changed the dependency in respect of the children.

80. Judge Burke pointed out that there was a long line of authority to the
effect that benevolence from relatives, friends or the State after injury to a
worker does not derogate from dependency. He was referring of course to
cases such as Aafjes v Kearney (1975) 180 CLR 199; TNT Group 4 Pty Ltd v Halioris (1987) 8 NSWLR 486 and McCafferty’s Management Pty Ltd v Pimlott (1995) 12 NSWCCR 360.

81. Judge Burke held that in situations where a relative was dependent prior to injury there was a presumption of continuance with an evidentiary onus on the respondent to establish change. In the circumstances he found the onus had not been discharged.

82. His Honour Judge O’Meally in Warrender v Orange City Council,
NSWCC, No. 3390/87, 29 September 1997, unreported, took the view that
Social Security payments in themselves are not sufficient to alter a wife’s
status as a dependant. He took the same view in Bishop v Bucciarelli,
NSWCC, No. 8711/82, 11 March 1998, unreported.

83. His Honour Judge Moran in Dunn v Sydney City Council, NSWCC, No. 6169/92, 7 June 1993, unreported, rejected the suggestion that, because the applicant’s wife received a Social Security benefit for herself and two children whilst the husband only received the benefit for himself, the Court should draw the conclusion that the wife and children were not mainly dependent.

84. I agree with my colleagues’ approach to the interpretation of s 37(4) and taking all the evidence into consideration determine on the balance of
probabilities that the applicant’s de facto spouse was mainly dependent upon him at all relevant times.”

 

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