Canute v W a Pickles (NSW) Pty Ltd ATF the William Alan Pickles Family Trust

[2023] NSWPIC 376

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Canute v W A Pickles (NSW) Pty Ltd ATF The William Alan Pickles Family Trust & Ors [2023] NSWPIC 376

APPLICANT:

Natalie Canute

First Respondent:

W A Pickles (NSW) Pty Limited ATF The William Alan Pickles Family Trust

Second Respondent:

Jaydon Canute

Third Respondent:

Brooke Canute

Fourth Respondent:

Kristopher Walsh

Member:

Elizabeth Beilby

DATE OF DECISION:

28 July 2023

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; claim in respect of lump sum death benefit; claim for grandchild of the deceased for weekly benefits pursuant to section 25 on the basis that the deceased was ‘in loco parentis’ position; Held – the deceased was not ‘in loco parentis’ position in relation to the fourth respondent.

determinations made:

The Commission determines:

1.     Warren Canute was not ‘in loco parentis’ position in relation to the fourth respondent.

2.     Award for the first respondent in respect of the claim for weekly payments.

STATEMENT OF REASONS

BACKGROUND

1. On 26 April 2021 Mr Warren Canute was climbing down from a trailer when he sustained a right anterior talofibular ligament tear. As a consequence of the right ankle injury, Mr Canute developed a pulmonary thrombo embolism which resulted in his cardiac arrest and death on 10 May 2021.

2. The first respondent (the employer/applicant) has admitted liability in respect of the death and is liable to pay compensation pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act) (the lump sum death benefit).

3. The fourth respondent seeks an Award in respect of weekly benefits on the basis that his Grandfather, Warren Canute was ‘in the place of his parent’ as at the time of death (or loco parentis).

4. The parties have requested that a determination be made in relation to the application for weekly benefits by the fourth respondent before any determination in relation to apportionment of the lump sum death benefit is made.

ISSUES FOR DETERMINATION

1. The parties agree that the following issues remain in dispute:

   (a)    was Warren Canute “in loco parentis” at the time of his death, and

   (b)    dependency and apportionment (to be dealt with a secondary matter).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. This matter was listed for arbitration in relation to a single issue, namely whether the deceased, Warren Canute, was acting in the place of a parent as at the time of his death pursuant to s 25(5) of the 1987 Act. The parties have requested a determination on this issue before reaching any agreement on apportionment of the lump sum benefit.

2. It should be observed that initially the children of the deceased and grandchild (that is the second, third and fourth respondents respectively) did not wish to make a claim relating to dependency, indeed the second and third respondents signed statements to that effect. There was a change in this decision so that they now wish to make claims regarding dependency and weekly benefits (limited to the fourth respondent).

3. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied.  I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them.  I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute. 

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:

   (a)    Application to Resolve a Dispute and attached documents;

   (b)    Reply from all the Respondents, and

   (c)    Late documents dated 2 February 2023, 19 April 2023, 10 May 2023 and
   1 June 2023.

Legislation

1. Section 25(5) of the 1987 Act provides a definition for the child of the worker as follows:

   “25 DEATH OF WORKER LEAVING DEPENDANTS 

   …

   (5) In this section--
   ‘child of the worker’ means a child or stepchild of the worker and includes a person to whom the worker stood in the place of a parent.
   ‘dependent child of the worker’ means a child of the worker who was wholly or partly dependent for support on the worker.
   ‘student’ means a person receiving full-time education at a school, college or university.”

2. The fourth respondent seeks weekly compensation on the basis that he was a person to who the worker stood in the place of a parent.  The central thrust of the submissions was that the fourth respondent’s natural father Aiden Walsh, was not a reliable or regular feature in his son’s life. Warren Canute, took the place the father to his grandson.

3. I will now examine the evidence filed in this dispute.

Natalie Canute

1. Natalie Canute is the widow of Warren Canute, having married in 2003.

2. Natalie Canute’s first statement is dated 19 September 2022 and clearly outlines her financial dependence upon the deceased.

3. At paragraph 12 of that statement, Natalie Canute deposes that at the time of her husband's death both her daughter and son and grandson were residing with them at a home in Wodonga (“the Wodonga home”). She explains that both her son and daughter contributed to rent expenses out of their wages.

4. She says in that statement that she does not believe that her husband had any dependants other than herself. She describes her children as adults and both working full-time jobs. She says that her husband bought the household food but her children could buy their own food if they wanted and were not reliant upon him for financial support or services.

5. The statement does not mention Aidan Walsh or his circumstances at all.

6. Natalie Canute has signed a second statement dated 18 February 2023. The statement deposes that Warren Canute stood in place of Aidan Walsh following Kristopher’s birth. She recalls that assistance was given to feed Kristopher by Mr Canute to give his daughter a break. He was also assisted with changing nappies and bathing Kristopher.

7. Financial assistance was also afforded to assist Brooke Canute in looking after her son.
   Mr Canute would buy nappies and formula and also purchased a cot and bassinet.

8. The statement refers to the fact that Brooke and Kristopher lived at the home in Wodonga house however is absolutely silent in relation to when and where Aidan Walsh resided at any stage following the birth of Kristopher up until the date of death of Mr Canute. The statement also makes no observations about the relationship between Mr Walsh, Ms Canute and Kristopher.

Jaydon Canute

1. Mr Jaydon Canute is the son of Warren Canute, having been born in 2002.

2. Jaydon Canute has provided a statement dated 17 November 2022 where he outlines his dependency upon the deceased. In that statement he says that on 10 May 2021 he resided with his mother (Natalie Canute), his father, his sister Brooke Canute and his nephew Kristopher Walsh.

3. His statement does not provide any detail in relation to Aiden Walsh.

Brooke Canute

1. Brooke Canute has provided a statement dated 22 November 2022. In that statement Brooke Canute explains that she is the daughter of Natalie Canute (the applicant) and Warren Canute (the deceased). She is the mother of one child, namely Kristopher Walsh who was born in 2020.

2. Ms Canute explains that at the time of her father’s death she was living with her mother and father together with her son Kristopher at her parents’ home. She also says that her brother Jaydon was living there. Kristopher at that stage was approximately 14 months old.

3. Whilst Ms Canute moved out of home for a period, in February 2019 she moved back in with her parents. Shortly thereafter, Ms Canute discovered that she was newly pregnant.

4. Brooke Canute has filed a further statement dated 9 May 2023. In that statement Ms Kanute confirms that Kristopher had lived together with her at her parents’ house in the Wodonga home and in addition her cousin Bobie Jones had lived there for some period of time.

5. Ms Canute describes the relationship with Aidan Walsh commencing in or about mid-November 2018 at the time she was living with her cousin Bobie Jones. She describes the relationship as an ‘on and off’ relationship.

6. At the time of discovering she was pregnant, Ms Canute says that Aidan Walsh was living at another place, that is not with her. She understands that in approximately April 2019 Aidan Walsh was caught by police with ice, ecstasy and other drugs while driving. He had tested positive to a roadside drug test and made full admissions in respect of the offences. He was sentenced to perform community service in respect of those charges.

7. In August 2019 Aidan Walsh was arrested in respect of a ramraid at Wodonga. He pleaded guilty in respect of those charges and he was placed on bail.

8. Ms Canute says that following Kristopher’s birth,  Aidan Walsh was still living with his mother. However, from time to time he would stay with her and Kristopher at his parents’ house ( the Wodonga house) . When he was there, he did provide care for Kristopher such as feeding and bathing him however this was not a regular occurrence. She described the relationship as not stable however they did attempt to be in a relationship for the benefit of Kristopher.

9. Ms Canute said even though Aidan Walsh was working he did not provide her with any financial assistance following Kristopher’s birth. From time to time he would pick up some food or other shopping and on those occasions, he would transfer the funds to pay for that food or shopping.

10. Ms Canute insists that Aidan Walsh did not transfer monies to her on a regular basis to buy clothing, food or otherwise for Kristopher. Rather, Ms Canute relied on her mother and father to provide Kristopher with that support.

11. Ms Canute confirms that she relied on both her mother and father to assist her on a regular basis for day to day care for Kristopher which included washing his clothes, cooking and cleaning the house, bathing and feeding him or caring for him overnight. This was on an almost daily basis. In addition, her parents looked after Kristopher when she was able to obtain work.

12. Ms Canute confirms Aidan’s mother Kylie cared for Kristopher on a regular basis each Sunday during the day.

Aidan Walsh

1. Aidan Walsh is currently detained on remand and was approached by Quantum Corp Investigators on behalf of the first respondent. They had requested a personal visit with
   Mr Walsh in order to obtain a signed statement from him in relation to the issues in dispute.

2. Mr Walsh declined to be interviewed and sent a text message in the following terms:

   “With all due respect I don’t wish to make a statement as I am concerned it will result in Brooke stopping me from seeing Kristopher.”

Kylie Chiang

1. Kylie Chiang has prepared a statement dated 19 January 2023. Ms Chiang is the mother of Aidan Walsh.

2. At the time of making her statement, Mr Walsh was in Melbourne Remand Centre as a result of breaching an AVO.

3. Ms Chiang says that she believed that Aidan had been living with Brooke Canute prior to the birth of Kristopher in an address at Wodonga. At that address there were three of them living there, Brooke, Aidan and her cousin Robbie. It was whilst living there that Aidan and Brooke commenced their relationship, which she estimates would have been in early 2018.

4. Ms Chiang explains that prior to Kristopher’s birth, Brooke Canute and Aidan Walsh had been in a relationship and had broken up several times but generally she describes them as being mostly together in the relationship.

5. Ms Chiang says that Aidan and Brooke were living together as the parents of Kristopher in a husband and wife relationship. Ms Chiang would attend the house on a regular basis in Wodonga where Brooke lived with Aidan and her parents. Ms Chiang would look after Kristopher on most weekends after he was born to help them out. She describes herself as having regular contact and regular visitation with Kristopher.

6. Ms Chiang explains that at one point she needed to have a Court-listed address changed from an address in Calowra to a Wodonga address as there had been a previous order for him to reside at the Calowra address.

7. In relation to Mr Walsh’s employment, Ms Chiang says that he would have been employed throughout the period of the relationship and throughout the time he was living with Brooke and Kristopher as he was never out of a job for long given his skill set.

8. Ms Chiang says on the night that Mr Canute passed away, Aidan and Brooke were living together at the Wodonga address and she recalls that she was looking after Kristopher and recalled receiving a telephone call in the early morning to tell her that Mr Canute had passed away. Ms Chiang says that she recalls that Aidan and Brooke were definitely living together at the time of death.

9. Ms Chiang believes that at the time of death, Aidan was working at a butcher’s shop and he had been offered an apprenticeship after he had been working there for some period of time.

10. So far as living arrangements were concerned, Ms Chiang recalls that the couple broke up for a short time and Aidan moved into a rental unit in Jarrah Street Wodonga which would have been approximately late 2021 or early 2022. Shortly after Aidan going to the unit, Brooke moved all her furniture into the unit and they got back together. They were both in the unit for less than nine months and they broke up again and Brooke moved back to the house and shortly after Aidan moved out of the unit and back into the Wodonga house with Brooke and they continued living together until they got a further property. Aidan and Brooke lived together at this property from July 2022 until they finally broke up in September/October 2022 when Aidan returned to live with his family.

11. Aidan was placed in custody as of Tuesday 10 January 2023. Ms Chiang describes the relationship between Brooke and Aidan as one that was on and off however from the time Kristopher was born they had been living together and Aidan had provided both financial and emotional support for Brooke and Kristopher.

12. Ms Chiang describes both Aidan and Brooke as having drug problems however Aidan’s were more significant.

Jodee Owen

1. Jodee Owen has sworn a statement dated 1 February 2023. Jodee Owen is the sister-in-law of Aidan Walsh. She says that Kristopher was only just born when she first met Brooke Canute. At that stage Brooke and Aidan were living together at Natalie Kanute’s house in Wodonga. They lived at that address until at least after Kristopher’s first birthday and she recalled they set up a whole lot of balloons at Natalie’s house to celebrate.  Kristopher’s birthday would have been approximately four months before Mr Canute’s passing.

2. Ms Owen describes the relationship between Brooke and Aidan as one that they had been living together as husband and wife though they were never married. Indeed, she recalled that Aidan proposed to Brooke on a special occasion day which may have been her birthday.

3. Ms Owen believes that Aidan had been employed throughout the period of the relationship and recalls him working as a butcher in Wodonga and also at some stage at an automotive body workshop in Wodonga.

4. Ms Owen recalls the couple broke up several times and they moved into a unit together and then back to Natalie’s.

5. Ms Owen recalls that when Mr Canute passed away her best friend, Peta Jones, had been living in the house at the same time as Mr Canute’s passing. Peta Jones had discovered Warren on the floor of the kitchen when he had passed away.

6. Ms Owen recalls that when Aidan and Brooke  were living together Aidan would support Brooke and Kristopher financially though she observed that they fought a lot about money.

7. Ms Owen describes Aidan as being absolutely amazing with Kristopher and gave him a lot of love and affection and indeed taught him how to ride a motorbike despite his young age. He described Aidan as coming in from a hard day’s work and making sure that Kristopher was bathed and dressed properly and he doted on Kristopher.

8. Ms Owen described Kristopher as a “golden grandchild” and Kylie, Aidan’s mother, doted on Kristopher, looked after him on a regular basis. She described this as every Sunday night.

Bobie Jones

1. Bobie Jones has provided a statement dated 25 November 2022. Bobie Jones explains that she is a friend of Brooke Canute and has agreed to act in the role of tutor in the proceedings.

2. Bobie Jones does not provide any additional information except to explain that she also resided in the Canute’s home for a period of time. She agreed she has read the statement of Brooke Canute dated 22 November 2022 and agreed with the contents therein.

SUBMISSIONS

1. The fourth respondent’s submissions focused on the relationship between Kristopher Canute and Aidan Walsh which they described as one which was not regular and in general ‘unsupportive’. The applicant referred to Mr Walsh’s criminal history which they said included time in custody and problems with drugs and traffic offences. They described him as largely absent.

2. The fourth respondent therefore submitted that the person who stood in the role as a father to Kristopher was Warren Canute.

3. I was helpfully referred to the authority of James Allen Rose-Barnett[1] which discusses the meaning of “in the place of the parent”. The relevant part of the decision is repeated below.

   [1] James Allen Rose-Barnett & Ors by their representative Sharyn Gaye Rose v T A Edison Pty Ltd [2008] NSWWCCPD 10 (30 January 2008).

   “35.   The expression ‘in the place of a parent’ has been considered in several authorities. In Nash v The Commissioner for Railways [1963] SR (NSW) 357; [1963] NSWR 30 (‘Nash’) the Full Court was concerned with a claim under the Compensation to Relatives Act, 1897-1953. The plaintiff claimed damages on behalf of himself and his wife, and on behalf of a child to whom the plaintiff’s deceased son allegedly stood in loco parentis. In this context, the Court said at 362:

   ‘What the Act appears thus to embrace is a state of notional parenthood, of de facto incorporation into a family, irrespective of ties of blood, marriage or adoption, and regardless of legitimacy. It would accordingly not appear to be sufficient, to found a claim under the ‘in loco parentis’ relationship, merely to show that the deceased, either in the role of ‘father’, or of ‘child’, provided, or might reasonably have been expected to provide, benefits or services measurable in money to another member of the family. It is necessary to show that the ‘father’ stood in the shoes of an actual father, and the ‘child’ in the shoes of an actual child, looking to the ‘father’ for care, protection, maintenance and upbringing, as the ‘father’ looked to him, perhaps, ultimately, for some support in his declining years. We are, in other words, not concerned,...merely to seek a person taking upon himself the duty of making financial provision for a child, and a child so provided for; what must be shown is a relationship of foster parent and foster child with all its incidents.’

   36.    The Court held that there was evidence that before the birth of the child the deceased ‘was planning for its care, maintenance and upbringing’ (362), which was sufficient to show a proposed parent-child relationship with all its incidents. There was therefore sufficient evidence that the deceased stood in loco parentis to the child.

   37.    In Roser v Waltons Ltd [1974] WCR 138 (Roser) Judge Ferrari held that the words “child of the worker” used in section 8(1)(b) of the Workers Compensation Act 1926 (the 1926 Act) included an ex nuptial child born to the deceased’s daughter after his death. Though it was not necessary for the determination of the matter, his Honour also considered whether the child was ‘a person to whom the worker stood in loco parentis’ within the meaning of section 8(1) of the 1926 Act. His Honour considered and distinguished Nash, saying at 148:

   ‘Under the Workers’ Compensation Act, it is between the injured or deceased worker and the dependant that the in loco parentis relationship must exist. The relevant entitlement of the dependant is itself in respect of support proceeding from the relationship, and (save in respect of the arbitrary provision in respect of total dependency and its operation as a maximum) the extent of that support is the measure of the compensation.’

   38.    His Honour added at 149 that:

   ‘it must at any rate suffice that he [the deceased worker] assumed to provide shelter and food and clothing, as a father would, during childhood or for an indefinite period, and I do not think it matters that he might have done this under circumstances that left it likely that the child’s mother would also contribute to the child’s support. In this and in other respects, it would seem unlikely that the quasi father should have to aspire beyond the standards of fathers themselves.’ (emphasis added)

   39.    Whilst I am far from satisfied that Nash can be distinguished for all of the reasons suggested by Ferrari J (at 148 and 149 of Roser), it is correct that Nash was concerned to determine what was meant by the term in loco parentis in the particular context of the Compensation to Relatives Act and is therefore not binding on me. Nevertheless, it is obviously of considerable persuasive weight in determining the question before me.

   40.    Nash was also considered by Judge Blaxell in Gary Charles Armstrong by his next friend Katrina Theresa O’Pray & ors -v- Proctor [2003] WADC 252 (‘Armstrong’). This case concerned a claim for damages under the Fatal Accidents Act 1959 (WA). Under that Act the plaintiffs were entitled to recover damages if they were a ‘relative’ of the deceased (Mr Armstrong) who was killed in a car accident due to the fault of a third party. The Act defines “relative” to include ‘(e) any person who stood in loco parentis to the deceased person immediately before his death’.

   41.    His Honour noted (at [11]) that Bennet v Bennet (1879) 10 Ch D 474, 477 and McIntosh v Williams[1976] 2 NSWLR 237, 249 (McIntosh) suggest that ‘it may be enough to show that the deceased took on the duty of a father to provide for or support each child’. His Honour also referred to the Attorney General’s Second Reading Speech in respect of the Amendment Bill (Hansard 24 March 1984 p 6463-4) which showed the focus of the Bill was:

   ‘...to extend the class of persons who may claim under the Act, by bringing in a number of people who were members of the deceased person’s household or dependent upon him.’ (at [13])

   42.    After quoting the Second Reading Speech his Honour added, at [14]:

   ‘This suggests that the decision in Nash provides too narrow a basis on which to construe the Act. It follows in my view that on a proper construction of the Act it is enough to establish a loco parentis relationship if there is proof that the deceased took upon himself the duty of a parent to contribute to the financial support of a child.’ (emphasis added)

   43.    In Armstrong, the deceased lived with the children and their mother (Mrs O’Pray) as a family for about two years. In this time he developed a close relationship with the children, who called him ‘Dad’, and provided financial support to the family as a whole. After two years he left the family home to live in a caravan at the back of Mrs O’Pray’s mother’s house a short distance away. He continued to see Mrs O’Pray and the children, have nearly all his meals with them, provide financial support to them, participate in activities with the children, provide them with pocket money, attend school events and help them with their homework. In these circumstances the Court held that the evidence ‘clearly’ established that the children were persons to whom the deceased stood in loco parentis immediately before his death.

   44.    In Chartier, the Supreme Court of Canada had to determine whether a child was a ‘child of the marriage’ under the Divorce Act, R.S.C 1985. A ‘child of the marriage’ under that Act includes ‘(b) any child of whom one is the parent and for whom the other stands in the place of a parent’. The Court considered (at [39]) the following matters to be of importance in determining if a person stands in the place of a parent:

   (a)the fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a member of his or her family;

   (b)whether the child participates in the extended family in the same way a biological child would;

   (c)whether the person provides financially for the child (depending on ability to pay);

   (d)whether the person disciplines the child as a parent would;

   (e)whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child, and

   (f)the nature or existence of the child’s relationship with the absent biological parent.

   DISCUSSION AND FINDINGS

   45.    The question to be determined has been described as ‘probably one of the most difficult of legal problems to solve’ (James LJ in Fowkes v Pascoe (1875) 10 Ch. App. 343 at 350). With the passage of time and the constantly changing dynamics and make up of the modern family, the problem has not become any easier.

   46.    Having regard to the above authorities and the beneficial nature of the workers compensation Acts, it is my view that a worker is in the place of a parent where he or she accepts, in a real and substantial way, the responsibilities of a parent to provide for the care, maintenance and upbringing of the child concerned. The provision of shelter, food and clothing (Roser) will be an important and often a critical factor, but it is equally important to consider the circumstances in which the worker provides the shelter, food and clothing and the nature of the relationship the worker has with the child. The nature of a parental relationship ‘is complex and includes more than financial support’ (Chartier, at [43]). A generous relative may provide financial support for a child, but not be in the place of a parent. To come within the terms of section 4 of the 1998 Act the worker must also assume responsibility for other aspects of the child’s upbringing, as a parent would.

   47.    Whilst a parent’s responsibilities with respect to a child extend to every aspect of the child’s life, including the physical, mental, moral, educational and general welfare of a child (Reasons, paragraph 102, citing Secretary Department of Health & Community Services v JWB & SMB [Marion’s Case] [1992] HCA 15; (1992) 175 CLR 218), that does not mean that it must established that the worker assumed responsibility for every aspect of a child’s upbringing before he or she can be said to be in the place of a parent. The evidence must, however, establish that the worker accepted and fulfilled, in a significant and meaningful way, the responsibilities of a parent with respect to the child’s care, maintenance and upbringing. The fact that the worker merely provided support to the child (financial or otherwise) will be a factor relevant to that determination, but will not, on its own, be determinative.”

1. The first respondent’s submissions were that the relationship between Kristopher Walsh and Aidan Walsh was of an entirely different flavour as described by the fourth respondent. They submitted that whilst Mr Walsh had experienced time in jail, this was not from the period from the fourth respondent’s birth until after the date of death of Mr Canute. I agree with this description. It is true that after Mr Canute’s death Mr Walsh has been detained, and as such it is not relevant to my analysis of the relationship as at the time of death.

2. It was submitted that Mr Walsh wished to have an active role in his son’s life however the relationship between Brooke Canute and Aidan Walsh was somewhat troubled however on balance Aidan Walsh fulfilled the role of a father.

3. The statements provided in this matter provide conflicting evidence as to the status of the relationship between Brooke Canute, Aidan Walsh and Kristopher Walsh at various stages.

4. One of the first issues I wish to determine is, was Aidan Walsh residing at the Wodonga property at the date of death.

5. In her initial statement, Brooke Canute does not mention that Aidan Walsh was residing at the property at the time of death. There are however significant issues in accepting Brooke Canute’s evidence as persuasive.

6. Aidan Walsh’s mother, Kylie Chiang has provided a cogent and descriptive statement as to her observations of the relationship between Brooke Canute and Aidan Walsh. In contrast, whilst Brooke’s statement is entirely silent as to both Kylie Chiang’s involvement with the supervision and care of young Kristopher, it is equally silent as to describing in an adequate way who was residing at the house as at the date of death. This includes not disclosing that Peta Jones was living there.

7. I find that Ms Chiang, who was in a position of looking after Kristopher at the time of death, would have had a good understanding of where her son was living, which she says was at the Wodonga house. This is also supported by the unchallenged fact that Aidan Walsh was at the Wodonga house as at the time of death.

8. The evidence provided by Kylie Chiang is also supported by statement of Jodee Owen who suggested that she attended the premises for Kristopher Walsh’s first birthday and at that time Aiden Walsh and Brooke Canute were definitely living together at that time. To further provide evidence of an ongoing relationship, Bobie Lee Jones also provided evidence that sometimes Mr Walsh resided in the house with Brooke and sometimes he lived elsewhere. This is consistent with the statement of Kylie Chiang to the extent that at times Mr Walsh resided at the Wodonga property.

9. The statement of Brooke Canute is of little assistance as to matters of financial transfer between Aidan Walsh and herself.  She simply refers to assistance provided “from time to time”.

10. The National Australia Bank records that have been produced clearly show transfers between Aidan Walsh and Brooke Canute on what appears to be a semi-regular basis as at the time of death. This includes the following payments:

    (a)    On 7 April 2021 a payment of $60;

    (b)    On 22 April 2021 a payment of $200;

    (c)    On 27 April 2021 a payment of $175;

    (d)    On 3 May 2021 a payment of $300;

    (e)    On 10 May 2021 a payment of $275;

    (f)    On 25 May 2021 a payment of $175;

    (g)    On 31 May 2021 a payment of $50;

    (h)    On 14 June 2021 a payment of $50, and

    (i)    On 2 July 2021 a payment of $200.

11. Looking at this evidence, what is clear is that there was a transfer of money between Aidan Walsh to Brooke Canute which is not disclosed in Ms Canute’s statement in any meaningful way. The transfers show what appears to be semi regular and not insubstantial amounts at and around the time of death of Mr Canute. I therefore not convinced and do not accept that Mr Walsh did not provide some sort of financial assistance.

12. There is no doubt to my mind that the relationship between Brooke Canute and Aidan Walsh was at time fractured as many young parents are who are having difficulties either dealing with personal issues and/or employment together with providing for a young child.

13. My mind must be focused on what was the situation as at the date of death, not what happened after that period. There is no doubt that Mr Walsh has been unable to provide care for young Kristopher Walsh at the present time due to his incarceration. That however is not relevant for the dispute that I must determine.

14. After considering the evidence, I make a finding of fact the following:

    (a)    As at the date of death Aidan Walsh was residing at the family home domiciled with Ms Brooke Canute and Cristopher Canute (together with other persons).

    (b)     I also find that there was a transfer of money between Aidan Walsh and Brooke Canute, and it is difficult for me to understand what that was for but one would assume it was for general household and incurred expenses from Brooke.

15. I don to accept that Aiden Walsh was an ‘absent father’ as submitted by the fourth respondent. He was living in the same house as his son and there was some form of financial assistance given to Brooke Canute.

16. There is also no doubt in my mind that Mr and Mrs Canute contributed to the welfare of Kristopher Canute and I accept that they purchased items to assist with looking after a young baby and also provided care and support on an ongoing basis. This however does not meet the test of standing in the parents place as outlined by Deputy President Roche.

17. It is a loving act that a lot of grandparents do out of love for both their child and their new grandchild. This however does not displace or replace the role of the father in the relationship in these present circumstances. In the present circumstances, Aiden Walsh was in the position of father and was not absent as at the time of death. In those circumstances I have declined to make the orders as sought by the fourth respondent.

CASE MANAGEMENT

1. The dependent parties had reached an agreement on the basis of there being an ongoing weekly award in respect of the fourth respondent. In the event that no ongoing Award was made, they wished to revisit any agreed apportionment of the lump sum death benefit.

2. The parties are granted leave to file short written submissions within 14 days in respect of any agreed apportionment, failing any agreement, the matter will be listed for further telephone conference forthwith.