Graff and Military Rehabilitation and Compensation Commission

[2008] AATA 102

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 102

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3419

VETERANS’ APPEALS DIVISION		)
Re		PENELOPE GRAFF

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P.E. Hack SC
Air Vice Marshal F.D. Cox AO, Member

Date8 February 2008  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

......................[Sgd]....................

Deputy President

CATCHWORDS

VETERANS AFFAIRS – service death – compensation for dependents of certain deceased members – definition of dependant – person in respect of whom the member stands in the position of a parent – ordinary duties of a parent – partial dependence – financial contributions to a child’s needs – actions more readily explicable on the basis of friendship than the adoption of the role of a father – decision under review affirmed.

WORDS & PHRASES – “dependant” – “dependent”

Military Rehabilitation and Compensation Act 2004 (Cth) ss 5, 15.

Bennet v Bennet (1879) 10 Ch 474

Ex parte Pye (1811) 18 Ves. Jun. 140; 34 E.R. 271.

Powys v Mansfield (1837) 3 My. & Cr. 359, 367; 40 E.R. 964, 967

Re Buck and Comcare (1999) 29 AAR 194

REASONS FOR DECISION

8  February 2008 Deputy President P.E. Hack SC
Air Vice Marshal F.D. Cox AO, Member

1.Squadron Leader Dr Paul McCarthy was a member of the Royal Australian Air Force. He died in April 2005 while performing defence duties. His death was a “service death” as that term is used in s 28 of the Military Rehabilitation and Compensation Act 2004 (Cth.) (the MRC Act).

2.The applicant, Ms Penelope Graff, is the mother of an infant, B (the child). Ms Graff says that the child was a dependant of Squadron Leader McCarthy immediately before his death and thus entitled to compensation under Chapter 5 of the MRC Act.

3.On 21 April 2006 the respondent, the Military Rehabilitation and Compensation Commission, rejected the claim on the basis that the child was not a dependant of Squadron Leader McCarthy[1]. There is no issue about the other elements of liability under s 251 of the MRC Act. Ms Graff seeks a review of the Commission’s determination, affirmed on re-consideration on 1 June 2007, to reject the claim by Ms Graff on behalf of the child.

[1]        There is no issue about the other elements of liability under s 251 of the MRC Act.

4.A variety of terms used in the MRC Act are defined in s 5. So far as is presently relevant it provides:

“In this Act:

…

dependant has the meaning given by section 15

dependent means dependent for economic support

...”

Section 15 is in these terms:

“15  Definition of dependant

(1)A dependant of a member means any person mentioned in subsection (2):

(a)who is wholly or partly dependent on the member; or

(b)who would be wholly or partly dependent on the member but for an incapacity of the member that resulted from an injury or disease or an aggravation of an injury or disease.

Note 1:   Sections 17 and 18 set out some examples of when a person is wholly dependent on a member.

Note 2:   This section also applies to former members (see section 20).

(2)These are the persons who can be a dependant of a member for the purposes of subsection (1):

(a)any of the following persons:

(i)the member’s partner;

(ii)the member’s father, mother, step‑father or step‑mother;

(iii)the father, mother, step‑father or step‑mother of the member’s partner;

(iv)the member’s grandfather or grandmother;

(v)the member’s son, daughter, step‑son or step‑daughter;

(vi)the son, daughter, step‑son or step‑daughter of the member’s partner;

(vii)the member’s grandson or grand‑daughter;

(viii)the member’s brother, sister, half‑brother or half‑sister; or

Note:     This paragraph is affected by section 16.

(b)a person in respect of whom the member stands in the position of a parent; or

(c)a person who stands in the position of a parent to the member.”

5.The issues that arise for determination are these:

(a)was the child a dependant of Squadron Leader McCarthy immediately prior to his death?

(b)was the child partly dependent upon Squadron Leader McCarthy as set out in s 15(1)(a) and (b) of the MRC Act?

Dependant

6.Ms Graff’s argument in support of the proposition that the child was a dependant was that the child satisfied s 15(2)(b)[2] of the MRC Act, that is, the child was a person in respect of whom Squadron Leader McCarthy stood in the position of a parent. The argument, agitated in correspondence by the solicitors for Ms Graff, that, on its proper construction, s 15 of the MRC Act was not an exhaustive list of those who could be a dependant was abandoned, correctly in our view since it is contrary to well-settled drafting practice[3].

[2]It was accepted that the child did not come within any of the categories in s 15(a) of the MRC Act.

[3]See Pearce DC and Geddes RS, Statutory Interpretation in Australia, 6^th ed, Lexis Nexis, Australia, 2006, at paragraph [6.56] and the cases there cited.

7.The argument put forward by Mr Richards, counsel who appeared for Ms Graff, relies upon the notion that Squadron Leader McCarthy stood “in the position of a parent” to the child. We are not aware of any judicial consideration of the meaning of this phrase and none was cited to us. There is, however, some learning about the similar expression in loco parentis. Sir George Jessel said this[4]:

[4]        Bennet v Bennet (1879) 10 Ch 474 at pp. 477-8.

“Now what is the meaning of the expression ‘a person in loco parentis’?

I cannot do better than refer to the definition of it given by Lord Eldon in Ex parte Pye[5], referred to and approved of by Lord Cottenham in Powys v Mansfield[6]. Lord Eldon says it is a person ‘meaning to put himself in loco parentis; in the situation of the person described as the lawful father of the child.’ Upon that Lord Cottenham observes,

‘but this definition must, I conceive, be considered as applicable to those parental offices and duties to which the subject in question has reference, namely, to the office and duty of the parent to make provision for the child. The offices and duties of a parent are infinitely various, some having no connection whatever with making a provision for a child; and it would be most illogical, from the mere exercise of any such offices or duties by one not the father, to infer an intention of such person to assume also the duty of providing for the child.’

So that a person in loco parentis means a person taking upon himself the duty of a father of a child to make a provision for that child. It is clear that in that case the presumption can only arise from the obligation, and therefore in that case the doctrine can only have reference to the obligation of a father to provide for his child, and nothing else.

But the father is under that obligation from the mere fact of his being the father, and therefore no evidence is necessary to shew the obligation to provide for his child, because that is part of his duty. In the case of a father, you have only to prove the fact that he is the father, and when you have done that the obligation at once arises; but in the case of a person in loco parentis you must prove that he took upon himself the obligation.”

[5] (1811) 18 Ves. Jun. 140; 34 E.R. 271.

[6] (1837) 3 My. & Cr. 359, 367; 40 E.R. 964, 967.

8.It is not necessary, in the present case, to determine the precise width of the expression “in the position of a parent”. Sir George Jessel was speaking in the context of the presumption of advancement however the passage set out above illustrates two matters that seem to us to be important in the context of what is to be regarded as standing in the position of a parent – that there be the exercise of the “offices or duties” of a parent, and that there be an intention to assume those offices or duties. In more contemporary language we would describe offices or duties as roles and responsibilities.

9.The expression would be apt to include, for example, a de facto spouse sharing the responsibility for raising the children of the other person in the de facto relationship; it would probably include foster parents and others with the task of acting in loco parentis to those who are not their children.

10.There can be no universal template for what amounts to acting in the role of a parent as there is no universal template for parenting. However, we would have thought that at least the expression required that the person undertake some part of the role, and perform some of the ordinary duties, of a parent. Thus, we would expect that 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. We would expect that a person in the position of a parent would play a role in the care of the child. And we would expect that there would be a demonstrated assumption of that responsibility.

11.To consider the position here it is necessary to recount the detail of the evidence. We should say at the outset that there was no real challenge to the evidence of primary fact given by any of the witnesses – Ms Graff, Mrs Haila McCarthy the mother of Squadron Leader McCarthy and Dr Patrick Weinrauch, his close friend. The controversy arises over the conclusions to be drawn from primary fact. We do not understand what follows to be in dispute.

12.The child was born in August 1999. Ms Graff was in a relationship with Mr Grant, the father of the child, from 1998 until 2001. The child was born some three months premature and was diagnosed with cerebral palsy when aged 14 months. Squadron Leader McCarthy had been a close friend of the father and took an interest in the child from the outset. He became the child’s godfather in a private, non-religious, ceremony when the child was one year old.    

13.During 2002 and 2003 Squadron Leader McCarthy was based at Williamtown Base near Newcastle. In each of those years he had overseas service. In December 2004 he was posted to Pearce Base in Western Australia. Mrs McCarthy recalls five occasions during that year that he returned to Queensland, generally in connection with a family occasion. On each of these visits he visited Ms Graff and the child. In the early part of 2005 Squadron Leader McCarthy was part of the Royal Australian Air Force team assisting recovery from the tsunami of Boxing Day 2004. It was in that capacity that he lost his life.

14.The evidence satisfies us that Squadron Leader McCarthy had a deep affection for the child. That affection was, we accept, displayed when he visited Ms Graff and the child, it was displayed in his conversations with others and it was displayed by him carrying photographs of the child with him. And we accept, as well, that that affection was reciprocated with the child calling him her “special daddy” and his sister her “fairy godmother”.  Ms Graff perceived Squadron Leader McCarthy to be a perfect male role model for the child, and no doubt he perceived himself as having an important role in the child’s life. He had no children of his own and, we were told, was unable to do so. He had a particular interest, as a medical practitioner, in the challenges that faced the child as a consequence of cerebral palsy. 

15.Ms Graff spoke of occasions in August 2004 when Squadron Leader McCarthy talked to her about the child, wanting to know how he could be actively involved in the life of the child. On each of these occasions he discussed with Ms Graff where she intended to send the child to school, suggesting a particular private school and agreeing to pay for the private school fees if Ms Graff decided to pursue that course.

16.There is evidence that Squadron Leader McCarthy contributed financially to meeting the child’s needs. Ms Graff can identify, by reference to her diary, five occasions during 2003 and 2004 when Squadron Leader McCarthy gave her money in cash. These sums totalled $1,500. Ms Graff thinks that there may have been up to five more occasions during that time, which she did not record, when she was given sums in the order of $100 or $200. Prior to that period and after separation from Mr Grant, Squadron Leader McCarthy gave Ms Graff smaller amounts in cash from time to time on perhaps another five occasions.  Mrs McCarthy, with the assistance of Royal Australian Air Force personnel, produced a table setting out what was described as a “Schedule of on-going financial support”. The first part of that schedule sets out the types of expenses incurred by Ms Graff, particularly as a consequence of the child’s cerebral palsy. The second part lists the amounts received by Ms Graff and the third part[7] sets out details, extracted from Squadron Leader McCarthy’s bank statements, of cash withdrawals from his bank account. Mrs McCarthy did not suggest that the amounts drawn in cash had necessarily been provided to Ms Graff, merely that they may have been. Many of the withdrawals were made interstate and we could not be satisfied that they were provided to Ms Graff. Given the uncertainty we consider that we ought to act on the basis that the financial support provided by Squadron Leader McCarthy to the child was in the order described by Ms Graff in her evidence.

[7]        As amended by the later statement at T43.

17.We are, as well, satisfied that by August 2004 Squadron Leader McCarthy intended to put his support for the child on a more formal basis. He spoke of setting up a trust for her future needs and changing his will to make provision for the child.  Unfortunately these matters had not been attended to prior to his death.

18.But the evidence here leaves us well short of being satisfied that Squadron Leader McCarthy performed any of the tasks, or undertook any of the roles, of a parent, or that that which he did was done intending to assume a parent-like obligation. He undoubtedly had a great affection for the child; the evidence of Ms Graff and his mother, Mrs McCarthy, and of his close friend, Dr Patrick Weinrauch, satisfies us of that. And, as we have said, we are also satisfied that from time to time he made financial contributions to Ms Graff to assist her meet the expenses of raising the child.

19.But those matters are more readily explicable on the basis of friendship and generosity rather than the adoption of the role of father. There is no evidence of any role taken by Squadron Leader McCarthy on decision-making in relation to the child. The discussion regarding the choice of school was on the basis of Squadron Leader McCarthy agreeing to Ms Graff’s choice rather than the type of discussion a mother and father might have about the future schooling of their child. The evidence does not suggest to us that Squadron Leader McCarthy was intending to assume a parental role; at best he appears to have been offering to adopt a more formal role at some time in the future.

20.Mr Richards urged upon us that legislation of this type is to be construed generously to ensure that the sacrifice of men and women in the services is properly recognised. We accept that that is so but nonetheless the evidence leaves us well short of being satisfied that Squadron Leader McCarthy acted in the position of parent to the child.

21.It follows that we are satisfied that the child does not come within the definition of “dependant” and the decision ought to be affirmed.

Dependent

22.Against the possibility that that conclusion might be held to be erroneous we should deal with the second issue – whether the child was dependent on Squadron Leader McCarthy. There is no suggestion that the child was wholly dependent; the argument advanced by Ms Graff was one of partial dependence.

23.Assistance in determining what is involved in “dependence” may be gained from the decision of Deputy President McDonald in Re Buck and Comcare[8], where the Deputy President 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 Barwick CJ at 179, McTiernan J 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 Gibbs J). 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. “

[8] (1999) 29 AAR 194 at 199, [19].

24.The evidence said to point to that conclusion is set out earlier.  It falls well short of demonstrating that the child was dependent on Squadron Leader McCarthy. We accept that Squadron Leader McCarthy made frequent, but understandably irregular contributions to Ms Graff to meet the needs of the child. But these, we think, fall to be considered as occasional gifts of a generous godfather rather than payments for the benefit of a dependent child. It is significant that Ms Graff described the first part of the schedule of on-going financial support as a list of expenses incurred by her. That is the reality; she incurred the expense and it was, no doubt, of assistance to her when Squadron Leader McCarthy gave her cash towards these expenses, but we do not accept that there was dependence upon the payments. 

25.It follows that we would affirm the decision under review.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Air Vice Marshal F.D. Cox AO, Member

Signed:
           .....................................................................................
  Jacqueline Woods, Associate

Date of Hearing  24 January 2008
Date of Decision  8 February 2008
Counsel for the Applicant         Mr D Richards
Solicitors for the Applicant         KCI Lawyers

Counsel for the Respondent     Mr C Clark
Solicitors for the Respondent    Australian Government Solicitor