Roe and K & S Freighters Pty Ltd (Compensation)

Roe and K & S Freighters Pty Ltd (Compensation) [2023] AATA 52 (13 January 2023)
Division:GENERAL DIVISION
File Number(s): 2020/8332
Re:Kellie Jayne ROE
APPLICANT

AndK & S Freighters Pty Ltd
RESPONDENT

Decision
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:13 January 2023
Place:Sydney

The Tribunal finds that the correct or preferable decision is that the reviewable decision, dated 26 October 2020, is varied as follows:
(a)the deceased, Mr Mark Rallings, had two dependants, being the applicant and Mr Ky Rallings, at the time of his death;
(b)the applicant and Ky Rallings were partly dependant on Mr Rallings, and therefore are entitled to benefit under s 17(4) of the SRC Act; and
(c)the applicant and Ky Rallings are entitled to a benefit of 5% and 35% of the principal sum payable under s 17(4) of the SRC Act, being $517,564.84.
(d)I find that the applicant is entitled to benefit under s 18 of the SRC Act in the amount of $11,459.25.
(e)The respondent is to pay the applicant’s costs of the application for review, as agreed or taxed under s 67(8) of the SRC Act.

........................[SGD]................................................
The Hon. John Pascoe AC CVO, Deputy President
Catchwords
COMPENSATION – workers compensation –liability for an employee’s death arising from injury in the course of employment – whether the employee had any dependants at the time of his death – whether his child was a prescribed child – whether he was in a de facto relationship – whether the dependants were wholly dependent – whether the dependants were partly dependent – where there is a prescribed child – where the applicant is the primary caregiver to the child – whether the applicant and the deceased lived together at the time of his death - no de facto relationship – decision under review varied.
Legislation
Acts Interpretations Act 1901 (Cth) s 2F
Safety Rehabilitation and Compensation Act 1988 (Cth) s 4, 17, 18, 67
Cases
Aafjes v Kearney (1976) 180 CLR 199
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
13 January 2023

This matter relates to an application for review regarding a decision of the delegate of the respondent of 26 October 2020 that denied that the respondent was liable under s 17 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’).
Background
This is a matter with a contested factual background. This is noted and discussed below.
The applicant was born in Australia in October 1969. She first met the deceased, Mr Mark Rallings, in 1984 but did not begin a relationship with him at that time.
In 1988, Mr Rallings had a child, ‘Brydie’, with a different partner.
The applicant asserts that the applicant began a relationship in 1998 with Mr Rallings, and that they commenced living together, and that Mr Rallings’ child Brydie also lived with them between 2000 to 2006. The applicant asserts that the family lived together at 79 Addison Avenue, Lake Illawarra (‘Addison Avenue’), and that while the applicant was the registered proprietor, Mr Rallings had provided the funding for the property.
In February 2002, the applicant gave birth to her and Mr Rallings son, Ky Rallings. The applicant contends that Ky lived with the applicant and Mr Rallings for most of his life until Mr Rallings’ death, bar a period of mental ill health of Mr Rallings. The respondent denies this.
Mr Rallings worked as a truck driver. The applicant asserts that there were periods where he had his own truck, and other periods where he worked for employers such as BlueScope Steel, and the respondent as a truck driver. The applicant asserts that during the period that the applicant and Mr Rallings lived together, he provided the main income for the family, and the applicant’s income was supplementary to that.
On 28 December 2012, Mr Rallings was diagnosed with leukaemia, and quit his job. He was in hospital until February 2013. The applicant states that she took leave without pay from her job as a cleaner to care for him, and that at that time they were able to survive on income protection insurance payments.
The applicant states that Mr Rallings began to return to work in August/September 2013 and undertook a course of study at TAFE NSW to become a driving instructor and gained some employment in that area. However, he ceased this in 2014 due to it being unreliable. He later restarted work with Chemtrans as a full-time work as a truck drive. Chemtrans was subsequently taken over by the respondent, and Mr Rallings became an employee of the respondent.
The applicant asserts that during April 2014, Mr Rallings’ mental health declined to the point that it was no longer ‘healthy’ for the applicant and Ky to live at Addison Avenue anymore. In June 2014, they moved in with the applicant’s sister, and stayed until early 2015. The applicant asserts that there was an ongoing relationship between Mr Rallings and Ky, and also between Mr Rallings and the applicant; however, the relationships were ‘strained’ due to Mr Rallings’ mood. However, Mr Rallings continued to financially support the applicant and Ky with child support.
In August 2014, the applicant and Mr Rallings went to see solicitors independently regarding separation, and subsequently proceedings were held in the Family Court to divide their assets.
In January 2015, the applicant and Ky moved into a rental property at 4 Eloura Street, lake Illawarra (‘Eloura Street’). The applicant also made an official claim for child support which Mr Rallings complied with.
The applicant contends that, after moving to Eloura Street, she continued to see Mr Rallings regularly, and that he effectively lived in the house with her and Ky. The respondent denies this.
Mr Rallings worked for the respondent during this period, subject to his health, and the applicant stated that he continued to support her and Ky financially.
In 2015, the applicant and Mr Rallings took part in a mediation for the purposes of the Family Court proceedings, during which it was agreed that the applicant and Mr Rallings would have a 50/50 split of the main assets of the relationship. The applicant states that this agreement was never executed as the pair reconciled, and that the agreement would have been executed had the reconciliation failed. The respondent denies this.
The applicant contends that, following the reconciliation, the applicant and Mr Rallings continued to live together, and that the lease on the Eloura Street property was renewed in January 2016 to allow for the pair to renovate the Addison Avenue property. The respondent denies this.
The respondent further says that the applicant and Mr Rallings were at all relevant times until his death engaged in a dispute in the Family Court, which proceedings remained extant and unresolved as at 14 May 2016 when he died and they had neither reconciled nor agreed to do so.
The respondent contends that the applicant and Mr Rallings were not living together immediately prior to his death.
The respondent also contends that Ky and Mr Rallings were not living together immediately prior to his death.
In 2016, Mr Rallings returned to work with the respondent. On 18 April 2016, while carrying out duties in the course of his employment with the respondent, Mr Rallings suffered an injury when he fell on a set of stairs. There is no dispute that this injury was compensable. He was diagnosed to be suffering from a rupture of the right quadriceps tendon. He continued to receive treatment at Wollongong Hospital for his compensable right leg injury until he suffered a pulmonary embolism which resulted in his death on the morning of 14 May 2016. There is no dispute that Mark’s death while in hospital is covered by s 6(1)(f)(ii), and that the respondent is liable to pay compensation under s 17 of the SRC Act in respect of any qualifying dependents.
The Issue
The parties agree that the following issues are the issues relevant to the determination of this matter:
(a)With respect to Ky:
(i)Was Ky a “prescribed child” of Mr Rallings immediately before the date of his death?
(ii)Was Ky living with Mr Rallings immediately before the date of his death?
(iii)Was Ky otherwise a dependant of Mr Rallings immediately as at the date of his death?
(iv)If “yes” to (i), (ii) or (iii) – was Ky “wholly dependent” or “partly dependent” on Mr Rallings?
(b)With respect to the applicant:
(i)Was the applicant the “spouse” of Mr Rallings immediately before the date of his death?
(ii)Was the applicant living with Mr Rallings immediately before the date of his death?
(iii)Was the applicant otherwise a dependant of Mr Rallings as at the date of his death?
(iv)If “yes” to (i), (ii) or (iii) – was the applicant “wholly dependent” or “partly dependent” on Mr Rallings?
(c)If relevant, what shares of any amount determined under s.17(3) of the SRC Act should be apportioned to Ky and/or the applicant under s.17(8)?
(d)What amount, if any, should be paid in respect of funeral expenses under s.18 of the SRC Act, and to whom should it be paid?
The respondent has noted that it does not dispute Ky to be a ‘prescribed child’ as per the definition of ‘prescribed child’ under s 4 of the SRC Act.
Subsequently, the respondent noted that, as a ‘prescribed child’ Ky will by virtue of s 4 (5) (b) of the SRC Act be deemed to be “wholly dependent” on Mr Rallings should the Tribunal find, in relation to the issue at paragraph 21(a)(ii), that he was living with the deceased immediately before the date of his death, and in those circumstances no occasion will therefore arise to consider whether he was partially or otherwise dependent upon him.
If the Tribunal determines that Ky was not living with Mr Rallings immediately before his death, it will be required to determine if Ky was partially or otherwise dependant on Mr Rallings.
As to Issue 21(b), the respondent notes that if (but only if) the answer to both paragraph 21(b)(i) and 21(b)(ii) is yes, then by virtue of s 4 (5) (a) of the SRC Act, the applicant will be deemed to be “wholly dependent” on Mr Rallings as at the date of his death, and no occasion will therefore arise to consider if she was partly or otherwise a dependant.
If the answer to either or both of 21(b)(i) or 21(b)(ii) is no, it will be necessary for the Tribunal to consider if she was partly or otherwise a dependant.
Further, in relation to Ky Rallings that, (he being “a prescribed child”), if the answer to Issue 21(a)(ii) is no, such that Ky Rallings is not deemed to be “wholly dependent” on the deceased, a question will necessarily arise by virtue of s 17 (5) whether he was (s 17(5)(a)) or would have been (s17(5)(c)) “wholly or mainly dependent” on Mr Rallings as at the date of his death, and if so, his entitlements would be calculated by reference to the operative parts of that provision, having regard to his age and the date that he ceased to satisfy the definition for entitlement under it, by virtue of the operation of s 17(6).
If both the applicant and Ky Rallings are found to be “dependants” and one or both of them are found to have been “wholly dependent” on Mr Rallings at the date of his death (whether deemed to be so, or otherwise) the dependants become entitled to a lump sum amount under s 17 (3) and, by virtue of s 17 (8), the Tribunal is required to determine “the shares of those dependants in the amount [it] thinks fit, having regard to any losses suffered by those dependants”.
The Law
Section17 of the SRC Act provides that:
Compensation for injuries resulting in death
(1) This section applies where an injury to an employee results in death.
(2) Subject to this section and sections 16 and 18, if the employee dies without leaving dependants, compensation is not payable in respect of the injury.
(3) Subject to this section and to sections 16 and 18, if the employee dies leaving dependants some or all of whom were, at the date of the employee's death, wholly dependent on the employee, Comcare is liable to pay compensation in respect of the injury of $400,000 and that compensation is payable to, or in accordance with the directions of, Comcare for the benefit of all of those dependants.
(4) If the employee dies without leaving dependants who were wholly dependent on the employee at the date of the employee's death but leaving dependants who were partly dependent on the employee at that date:
(a)subject to this section and to sections 16 and 18, Comcare is liable to pay compensation in respect of the injury of such amount, not exceeding $400,000, as Comcare determines, having regard to any losses suffered by those dependants as a result of the cessation of the employee's earnings; and
(b)that compensation is payable to, or in accordance with the directions of, Comcare for the benefit of those dependants.
(5) If:
(a)a prescribed child was, at the date of the injury or at the date of the employee's death, wholly or mainly dependent on the employee;
(b)a prescribed child, being a child of the employee, was born after the employee's death; or
(c)a prescribed child would, if the employee had not died, have been wholly or mainly dependent on the employee;
Comcare is liable to pay compensation at the rate of $110 a week and that compensation is payable to, or in accordance with the directions of, Comcare for the benefit of that child from the date of the employee's death or the date of the birth of the child, whichever is the later.
(6) Compensation is not payable under subsection (5) in respect of:
(a)any period during which the child is not a prescribed child; and
(b)in the case of a child referred to in paragraph (5)(c)--any period during which, if the employee had not died, the child would not have been wholly or mainly dependent upon the employee.
(7) An amount of compensation paid or payable under this Act before the death of an employee:
(a)is not affected by subsection (2);
(b)shall not be deducted from the compensation payable under subsection (3); and
(c)shall not be taken into account in determining the compensation payable under subsection (4).
(8) Where an amount of compensation is payable under this section for the benefit of 2 or more dependants of the deceased employee, Comcare shall determine the shares of those dependants in that amount as Comcare thinks fit, having regard to any losses suffered by those dependants as a result of the cessation of the employee's earnings.
(9) A reference in this section to a dependant of a deceased employee shall be read as a reference to a dependant by or on behalf of whom a claim is made for compensation under this section.
(10) Where claims for compensation under this section are made by or on behalf of 2 or more dependants of a deceased employee, Comcare shall make one determination in respect of those claims.
Section 18 of the SRC Act supples that:
Compensation in respect of funeral expenses
(1) Where an injury to an employee results in death, Comcare is liable to pay compensation in respect of the cost of the employee's funeral to the person who paid the cost of the funeral or, if that cost has not been paid, to the person who carried out the funeral.
(2) The amount of compensation is the amount, not exceeding the amount determined in accordance with subsection (4), that Comcare considers reasonable, having regard to:
(a)the charges ordinarily made for funerals in the place where the funeral was carried out; and
(b)any amount paid or payable in respect of the cost of the funeral under any other law of the Commonwealth.
(3) Where a person is liable to pay the cost of the funeral of an employee, any amount paid under this section to the person who carried out the funeral is, to the extent of the payment, a discharge of the liability of the first-mentioned person.
(4) The maximum amount of compensation under subsection (2) is:
(a)$9,000; or
(b)if the regulations prescribe a higher amount--that amount.
Note: The amount of $9,000 is indexed under section 13.
Section 4 of the SRC Act provides that:
child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.
de facto partner: of a person has the meaning given by the Acts Interpretation Act 1901 (* see below).
dependant, in relation to a deceased employee, means:
(a)the spouse, parent, step-parent, father-in-law, mother-in-law, grandparent, child, stepchild, grandchild, sibling or half-sibling of the employee; or
(b)a person in relation to whom the employee stood in the position of a parent or who stood in the position of a parent to the employee;
being a person who was wholly or partly dependent on the employee at the date of the employee’s death.
dependent: means dependent for economic support.
prescribed child: means:
(a)a person under 16; or
(b)a person who:
(i)     is 16 or more but under 25;
(ii)    is receiving full-time education at a school, college, university or other educational institution; and
(iii)   is not ordinarily in employment or engaged in work on his or her own account.
spouse includes:
(a)in relation to an employee or a deceased employee—a person who is, or immediately before the employee’s death was, a de facto partner of the employee; and
(b)in relation to an employee or a deceased employee who is or was a member of the Aboriginal race of Australia or a descendant of indigenous inhabitants of the Torres Strait Islands—a person who is or was recognised as the employee’s husband, wife or spouse by the custom prevailing in the tribe or group to which the employee belongs or belonged.
Section 4(4) of the SRC Act provides:
For the purposes of this Act, a person shall be taken to have been wholly or partly dependent on an employee at the date of the employee's death if the person would have been so dependent but for an incapacity of the employee that resulted from an injury.
Section 4(5) of the SRC Act provides:
For the purposes of this Act, a person who, immediately before the date of an employee's death, lived with the employee and was:
(a)the spouse of the employee; or
(b)a child of the employee, being a prescribed child;
shall be taken to be a person who is wholly dependent on the employee at that time.
The Evidence
Before outlining the oral evidence given at the hearing, I will note that many of the submissions made by the parties in this matter relate to the relative credibility of the different witnesses – namely, the respondent put forward submissions regarding the credibility and veracity of the applicant’s and Ky Rallings’ evidence generally.
I do not intend to make any generalised findings as to the credibility of the witnesses, but will deal with any inconsistencies as they arise and are relevant to my findings in this matter.
Evidence of Kellie Jayne Roe
The applicant affirmed her statement of 24 August 2021. The applicant gave evidence that she functionally illiterate, and that although she could deal with simple language, she was unable to deal with ‘big words’. She said that in preparing her statement, her solicitor had asked her questions which she had answered. Her solicitor then wrote the material down and it was read back to her.
She said that she had started a relationship with Mr Mark Rallings in 1989, and that they had started to live together in 1998 at 40 Charlotte Crescent, Albion Park. They lived at that address from 1998 to 2000, after which that property was sold, and they moved to 89 Addison Avenue which was a rental property. After living at that property for approximately 12 months, they looked for somewhere to purchase, and subsequently moved to 79 Addison Avenue Lake Illawara (‘Addison Avenue’). The intention was to build a new home on that property. The applicant said the property was put into her name, although the money was provided by Mr Rallings.

The applicant said the reason that the property was put into her name was because Mr Rallings was a truck driver, and he was concerned that if he had an accident and was pursued for legal action, he may lose his home.
Mr Rallings and the applicant lived in Addison Avenue until June 2014, with their son Ky, who was born in February 2002.
Mr Rallings was diagnosed with leukemia in approximately 2012, but was in remission until approximately 2014. The applicant said that at that time, Mr Rallings became very difficult to live with and alleged that she was having an affair, which she denied. Mr Rallings then threw the applicant and Ky out. The applicant said that at that time “threw all my clothes onto the front lawn”. The applicant said that Mr Rallings was very paranoid at that time.
After leaving the Addison Avenue property, the applicant and Ky went to live with her sister from June 2014 until January 2015. She said that during that period, Mr Rallings came to see her every weekend and would often stay the weekend with her. He continued to spend time with Ky even when their relationship was strained.
The applicant moved to 4 Eloura Street Lake Illawarra (‘Eloura Street’), in January 2015. The respondent noted that there was some inconsistency as to the reason behind the move between her oral and written evidence – in her statement dated 21 August 2021, she said she had moved to Eloura Street as it was easier for her with regards to taking Ky to and from school. In her oral evidence, she said the move had been to be closer to Mr Rallings, for Ky, and to Ky’s friends from school. I do not place much weight on this inconsistency.
She said she worked at Unanderra, and Ky attended a school near his father’s home in Addison Avenue. The applicant would pick Ky up at his father’s home as that was convenient and also close to Ky’s friends.
It was easy to walk from the house in Eloura Street to Mr Rallings’ house in Addison Avenue.
At the end of 2015, the applicant gave evidence that there were property proceedings in the Federal Circuit Court. However, during the mediation Mr Rallings had indicated that he wanted a reconciliation, and the applicant was “very happy”.
The applicant said that she and Mr Rallings agreed to try and work out their problems, and that if they were unable to do so they would sell the Addison Avenue house and “go 50/50”. The applicant emphatically denied that the reconciliation had anything to do with her wanting money. She said they tried to work things out, and regularly stayed at each other’s houses. However, Mr Rallings became ill again. In August, he was taken to Shellharbour Hospital and placed in the psychiatric ward. The applicant said that when he came out, he lived with her until he died. The applicant said that she and Mr Rallings were living together seven days a week, from September 2015 when Mr Rallings was discharged from Shellharbour hospital, until his death.
The applicant said that she went with Mr Rallings to doctor’s appointments when she was not working, and that Mr Rallings had income protection insurance which assisted the family when he was not working.
The applicant confirmed that there had been a dispute between herself and her step-daughter Brydie over how the Addison Avenue property, and Mr Rallings’ superannuation, should be dealt after Mr Rallings’ death.
The applicant said that Mr Rallings wanted her to keep the house, and for Brydie to get his superannuation. When asked about her relationship with Brydie, the applicant said that Brydie had lived with them from 2000 – 2006 and that in her view, they had enjoyed a ‘good relationship.’ She said that she was shocked by Brydie’s current attitude to her.
The applicant denied that she had commenced proceedings in the Supreme Court against Brydie in relation to the Addison Avenue house, and said “she did it to me.”
When questioned about whether she had approached Mr Rallings’ parents, his brother Guy and sister Vanessa, to get statement in support of her Supreme Court action, she agreed that she had done so but said that she had not asked Mr Guy Rallings to comment on whether or not she and Mr Rallings were going to get married. However, the applicant said that Mr Rallings had asked her to marry him. She said she only spoke to Mr Guy Rallings on the phone, and that she did not tell him about the Supreme Court case.
When questioned as to what the case as about, the applicant said that Mr Rallings had made a will with Brydie and Ky each having a half share. She said she did not know who had commenced the proceedings in the Supreme Court, and said she did not know what she was entitled to under the will.
When questioned about the fact that a number of statements said the same thing, the applicant said that it was coincidence.
It was noted that the proceedings had in fact been issued in the applicant’s name, and had been settled as recorded in a deed dated 17 July 2017. The applicant said that as a result of the proceedings, she got to keep the Addison Avenue house, and that she also got some money. She did not advise Centrelink of any change in her financial position.
The applicant said that she and Mr Rallings had always referred to each other as husband and wife. The applicant said however that she and Mr Rallings did not know the details of each other’s finances, but she said that Mr Rallings had kept her informed of how the mortgage was being reduced. She said that Mr Rallings paid the mortgage, utility bills, and other upkeep costs while she spent money on food and clothing.
She said that Mr Rallings was never financially dependent on her, but said that they supported each other and that it was a combined effort to meet household bills and that she paid for the groceries.
Mr Rallings took no responsibility to pay for anything at the Eloura Street house.
The applicant was referred to her tax returns for the years 2014, 2015, and 2016. She agreed that in her 2014 tax return, she had indicated that she was in a de facto relationship and described her spouse as “Mark Rallings”, but in her returns for 2015 and 2016 she did not claim to be in a de facto relationship.
When questioned about her 2015 return, it was put to the applicant that she did not give details of a spouse or de facto partner because she did not have one, to which the applicant responded “yes, I did – Mark.”
The applicant said that she and Mr Rallings went to the same tax agent.
The applicant was also questioned about her private health insurance and said that Mr Rallings had “taken me off medical.” The applicant had taken out her own private health insurance which she said had been paid for by her sister. Mr Rallings continued to pay for private health insurance for Ky.
The applicant was also questioned about payments she had received from Centrelink which she said were Newstart allowances payments which were related to Ky. Those payments ceased in January 2020. She said that she had never informed Centrelink that she was in a de facto relationship, and that she had never been questioned by Centrelink in relation to payments to her, nor had there been any suggestion of overpayment to her.
She received Family Tax Benefit A and B. Once Ky had turned 16, she did not receive any more payments.
The applicant was also questioned about child support payments, and when questioned agreed that she had approached the Child Support Agency for child support from Mr Rallings which had, after assessment, been paid to her directly by Mr Rallings’ employer, the respondent.
The applicant said that after she moved out of the Addison Avenue house, she had had some financial assistance from her sister. She said that Mr Rallings had provided for Ky with child support and said he had also provided additional items for Ky which she was unable to afford.
The applicant agreed that she had received family support payments from Centrelink from 2014 until January 2020. She said that she did not recall any of the circumstances in which those payments were made, although she acknowledged that the payments were received fortnightly.
The applicant said that there were no expectations that she would pay council or water rates at the Addison Avenue house. She said that when they had first split up, Mr Rallings did not pay for fuel for her car but that he did so once they were back together.
The applicant could not remember whether or not she and Mr Rallings had gone on family holidays after 2014, but said that Mr Rallings would pay for family outings such as “going out to dinner”.
The applicant said that she could not remember if she had stayed over at the Addison Avenue property after she and Mr Rallings split up in 2014. She said that she was not aware that Mr Rallings had been in a sexual relationship from March 2015 to September 2015 with Robyn Gilmore. She said she knew he was seeing someone but did not know about that relationship. She said that she had spent a “fair bit” of time with Mr Rallings in the period March 2015 – September 2015. The applicant said that Mr Rallings had told her in August that “it was over”.
When questioned as to whether Mr Rallings slept on the couch when he came to the Eloura Street house, she said that he was far too large to sleep on the couch, and that he also did not sleep in Ky’s bed. He always slept with her.
After being recalled, the applicant was questioned extensively about a letter from Williams Isabella Solicitors dated 13 November 2015 which set out proposals on behalf of the applicant for the parties to enter into a number of arrangements to protect their financial position in the event there was another breakdown in their relationship. These included:
a) Enter into a Binding Financial Agreement providing for an equal division of all assets and resources of the parties, in the event of a breakdown of the relationship. This is on the basis that the parties agree that they currently continue to live in a de facto relationship and the agreement proposed would be pursuant to section 90UC of the Family Law Act and would set out the financial arrangements in the event of a breakdown of the relationship.
b) The parties have discussed each making a Will to generally provide for the other.
c) It is proposed that the parties would recommence living under the one roof once the above matters are attended to.
In response, the applicant acknowledged that the solicitors for Mr Rallings, Mansons, had written back to her on 20 June 2016 saying that as he had made superannuation contributions for many years prior to his relationship with the applicant, it would be fair to make adjustments on superannuation which appropriately reflected the time that they had not been together.
The applicant accepted that Mr Rallings did not agree in relation to superannuation. She said that both of them had wanted to have wills which looked after each other and a binding financial agreement.
She accepted that a binding financial agreement had never been entered into, and that Mr Rallings had not made a will in accordance with the agreement.
The applicant said that although the letter from her solicitors said they would resume a de facto relationship after these documents had been entered into, she had resumed a de facto relationship with Mr Rallings despite the fact that neither the binding financial agreement nor the wills had ever been concluded.
She said that most of the time she and Mark lived together at the Eloura Street property and Mr Rallings went to the Addison Avenue property during the day to work on cars.
The applicant also said that proceedings in relation to Mr Mark Rallings will had been settled by a deed of agreement after she initiated proceedings in the Supreme Court of New South Wales.
Evidence of Ky Rallings
Mr Rallings affirmed his statement of 11 November 2021. He is now 20 years old and lives at the Addison Avenue property.
Mr Rallings gave evidence that his childhood was “good” up until the time of his parent’s separation in 2014. He said that after being “kicked out” of his father’s house, he and his mother had gone to live with his aunt. Whilst living with his aunt, he saw his father every second weekend and that he also went around to his house periodically just to say hello.
When his parents were together, Mr Rallings said that they were always happy and that when he and his mother moved to Eloura Street, his father’s house was not far away and he was able to go to there at any time to say hello to his father.
Mr Rallings did not recall when he started school, and that he was affected by Attention Deficit Disorder (‘ADD’) and that he “struggles to read and write.” Mr Rallings gave evidence that he had left school at the start of Year 11, which he said was approximately three years ago, and that upon leaving school he had entered into an apprenticeship as a boiler-maker.
When questioned about his wages as an apprentice-boilermaker, Mr Rallings said that when he started his apprenticeship he made approximately $480 after tax, and that now he was earning approximately $700 after tax. Mr Rallings said he will finish his apprenticeship in two years’ time.
Mr Rallings referred to a fight in August 2015 between his father and his half-sister Brydie, but when cross-examined on this issue he said he had no personal knowledge of the matter and that he had been told about it by his mother. He says there was a “good” relationship between his father and Brydie.
After his father came out of hospital in 2015, Mr Rallings said that he went to live with him and his mother and that he lived there seven days a week, never going anywhere else. He said he did not recall his father living at the Addison Avenue house during this period, and said that his father was “living with us” from September 2015 until he died.
He had never heard of Ms Gilmore.
Mr Rallings gave evidence that his father was approximately 6 foot 6 inches tall and weighed approximately 140 kilograms. He said his father was too large to sleep on the couch at the Eloura Street house, and that he did not recall his father sleeping in his bed with him on any occasion. Rather, he said whenever his father was at the Eloura Street house, he slept with his mother.
Mr Rallings shared an interest with his father in motor vehicles, and he often spent time with his father at his father’s house in Addison Avenue working on cars.
Mr Rallings remembered periods where things were “not good” between his mother and father, but he could not remember whether or not his father came to the Eloura Street property during those periods.
Mr Ky Rallings was also recalled to give evidence. Upon being recalled, Mr Ky Rallings confirmed his evidence regarding Mr Rallings living with him and his mother after his discharge from hospital.
Mr Guy Rallings
Mr Guy Rallings was referred his three statements of 31 January 2017 and 17 June 2022, and a statutory declaration of 5 May 2017.
Mr Rallings said that his statement of 31 January 2017 had been made at the request of the applicant, who had given him an outline of various dates and other information to be used in the statement. Mr Rallings said that the applicant had told him that she would not get any share of Mark’s estate without such supporting evidence. Mr Rallings did not keep the document he said that the applicant had given him.
Mr Rallings said that this was not a true statement, and that his brother Mark and the applicant were not living together at the relevant time but were rather living in separate houses.
He said that Mark was living in his own house in Addison Avenue, and that the applicant was living in the rented house on Eloura Street. Mr Rallings said he knew this because he had been at the house on Addison Avenue with his brother on various occasions. He had also relied on what his brother told him.
Mr Rallings said he did not always know what was happening between Mark and the applicant. He had never visited the Eloura Street house after his brother had come out of hospital.
He said his statutory declaration dated 5 May 2017 had been made at the request of Brydie.
Mr Rallings said that when he had visited his brother Mark at the hospital accompanied by his wife, his brother had said that he intended to marry the applicant once he was released from hospital.
Mr Rallings said that he did not know the contents of any statements made by his parents.
Evidence of Ms Robyn Gilmore
Ms Gilmore affirmed her statutory declaration of 2 April 2017, and her statement of 5 May 2017, along with her statement dated 19 June 2022. She said she had been in a relationship with Mark Rallings from March 2015 to September 2015, but after the relationship ended Mark Rallings kept in touch with her until the day before he died.
Ms Gilmore had visited the Addison Avenue home on a few occasions, and thought that Mark lived in that house ‘on his own’.
Ms Gilmore said that she had regular lengthy phone calls with Mr Rallings and that he spoke to her at length about his relationship with the applicant on a number of occasions.
It was her understanding that Mr Rallings wanted the house to go to the applicant, and his superannuation to go to Brydie, and nothing to go to Ky until he was 25.
Ms Gilmore said that as far as she was aware, the question of division of assets had not been resolved up until the time of Mr Rallings death.
She believed that Mr Rallings had always told her the truth, and that the time he spent with the applicant was in order to see Ky.
Ms Gilmore had never met the applicant or had a conversation with Ky, although she said she had been briefly introduced to him by his father.
Ms Gilmore’s attention was drawn to various hospital documents where Mr Rallings had referred to the applicant as his ‘partner’ and had said that he lived with his partner and their son.
Ms Gilmore said that she was not surprised that the arrangements set out in the Williamson Isabella letter had never been concluded.
Discussion
I will consider separately Ky Rallings and the applicant, turning first to Ky Rallings.
Ky Rallings
It was agreed by both parties is a ‘prescribed child’ within the meaning s 4 of the SRC Act.
It is necessary for the Tribunal to examine all of the evidence given at the hearing in order to determine whether Ky was a dependant, wholly or partially, in the circumstances of the current case.
I accept that Mr Rallings paid child support for Ky, and I also accept the evidence that when Ky needed additional or special items, Mr Rallings paid for those items.
An affidavit of Mr Rallings, filed with the Federal Circuit Court of Australia dated 6 May 2015 for the purposes of the Family Court proceedings occurring at that time, stated that he “paid [sic] child support in line with an administrative assessment”. Ky was aged around 12 at that time.
I further note that, in the material filed by the applicant on 22 June 2022, therein contained a Child Support Agency Assessment issued on 30 September 2014 which determined that for the period of 25 September 2014 – 19 February 2015, the applicant had 79 percent of care of Ky, and Mr Rallings had 21 percent of care, and a resulting cost percentage of 76 percent, for the purposes of the child support payments. The CSA Assessment found that Mr Rallings was to pay $84.10 weekly in child support.
I note that the respondent has provided a child support payer transaction statement, with an issue date of 3 July 2017, which showed the payment of child support by Mr Rallings between 28 October 2014 – 10 May 2016. I note that the amount of child support paid by Mr Rallings varies, but it is relatively consistent at $84.10 from 28 October 2014 until March 2015, when it rose to around $114.36.
While I note that there may have been other CSA Assessments conducted, which may have resulted in the change in child support payments, the above mentioned documents appear to be the only definitive evidence of the quantitative child support paid by Mr Rallings. While the CSA Assessment is not contemporaneous to the time during which the applicant states reconciliation occurred, it does provide useful insight into the state of affairs prior.

It is also of note that the child support payments did not cease when the applicant claims to have reconciled with Mr Rallings. The applicant gave oral evidence that she and Mr Rallings had agreed to allow the child support arrangement to stand, and to not inform Centrelink or the Child Support Agency of the reconciliation, as it ‘helped us [the applicant and Ky] financially’.
There is also evidence before the Tribunal that Mr Rallings paid for certain amenities life like health insurance for Ky, and on the Financial Statement filed with the Federal Circuit Court of Australia on 6 May 2015 for the purposes of family court proceedings, Mr Rallings noted down that he provided an allowance to Ky of $20 per week. Although these documents were not coeval with the date of Mr Rallings’ passing, they do indicate that, despite the situation with the applicant, Mr Rallings provided some level of financial support separate to child support to Ky. However, the evidence does not support a finding that Ky was wholly dependent on Mr Rallings. Ky primarily lived with his mother, who was working, and who provided day-to-day support for him. Although Mr Rallings may have been staying intermittently, with the applicant and Ky at the time of his death, the evidence does not support a finding that he was living there full time for any extended period. In fact, as dealt with above, the evidence is that he was not living full time at Eloura Street with the applicant and Ky.
The only evidence that Mr Rallings was living full time with the applicant and Ky before the Tribunal is that of the applicant and Ky. The evidence of Mr Guy Rallings and Ms Gilmore was that Mr Rallings lived at the house on Addison Avenue, although I note Ms Gilmore’s evidence may not have been relevant to the time immediately preceding the applicant’s death. Further, it was Ky’s oral evidence that neither he nor his mother, the applicant, spent any significant time at the Addison Avenue property during the period in question.
Ky was aged 14 at the time of Mr Rallings death. There is clear evidence before the Tribunal that Mr Rallings contributed financially towards Ky’s development, namely through the provision of child support payments and other ad-hoc financial support, including health insurance and an allowance. There is also oral evidence from Ky and the applicant that Mr Rallings helped to develop Ky’s interests and hobbies, such as working on cars together at the Addison Avenue property.
In taking into account all of the evidence, including Ky’s age, his long term living arrangements, the child support payments and the assessment that is before the Tribunal, and the evidence of Ky, the applicant, and the other witnesses, I do not find that Ky was wholly or mainly dependant on Mr Rallings at the time of his death, nor was Ky likely to become wholly or mainly dependant on Mr Rallings had he not passed away, for the purposes of s 17(5) & s 17(6) of the SRC Act.
I also cannot be satisfied on the evidence before me that Ky was living with Mr Rallings prior to his death for the purposes of s 4(5) of the SRC Act. I find that, as Ky was not wholly dependent on Mr Rallings at the time of his death, he is not entitled to benefit under s 17(3) of the SRC Act. I also find that, for the purposes of s 4(4) of the SRC Act, that Ky would not have been wholly dependent on Mr Rallings but for Mr Rallings’ injury and incapacitation prior to his death.
I note that in the respondent written submissions dated 7 September 2022, the respondent concedes that ‘Ky Rallings was a dependant who was partly dependent on [Mr] Rallings and is entitled to a benefit pursuant to section 17(4) of the SRC Act.’ They submit that, as per the definition of ‘prescribed child’ in s 4, he stopped being a prescribed child of Mr Rallings in June 2018 when he began working fulltime as an apprentice in June 2018.
Overall, I find on the evidence that Ky was a ‘prescribed child’, and that he was partly dependant on Mr Rallings, and thus entitled to a benefit pursuant to s 17(4) of the SRC Act.
In determining Ky’s entitlement, the respondent has asked the Tribunal to be mindful of Ky’s age at the time of Mr Rallings’ death, that he ceased attending school at age 16 and obtained an apprenticeship that initially paid $480 net per week and at the time Ky gave evidence was paying around $700 net per week. I take this evidence into account, and note that even at the time of the hearing, Ky's after-tax income is likely to be around $30 000 per annum, and it is unlikely he would be able to live independently on this amount.
I also take account of his continued residence with his mother.
It is difficult, in matters such as this, to determine what entitlement should be given of the principal sum, being $517,564.84, where much of the evidence is conflicting and there is to a great extent in absence of corroborating evidence. I give weight to the CSA assessment that it before the Tribunal in helping to determine this entitlement, along with the child support payer transaction statement which demonstrated that the payments occurred until May 2016.
The CSA assessment issued on 30 September 2014 apportioned Mr Rallings with 21 percent of care of Ky, and 24 percent of cost. There is no other CSA assessment before the Tribunal, and little other independent evidence of the dependence of Ky on Mr Rallings other than the continued payments of child support, which appeared to increase in amount after March 2015, and the documents provided for the purposes of the family court proceedings which show that Mr Rallings provided continued financial support to Ky separate to child support. There is no firm evidence as to the amount of additional support provided and it is likely to have varied from time to time.
Overall, on the totality of the evidence above, I find that Ky is entitled to 35% of the principal sum.
The Applicant
I now turn to the applicant.
Firstly, I accept that the applicant may have provided a level of care to Mr Rallings during his prolonged illness.
However, the relationship before Mr Rallings went to hospital could be described as somewhat problematic – Mr Rallings does seem to have referred to the applicant as his ‘partner’ in hospital documents, but that is not conclusive of the matter. There was a deep friendship, perhaps a sexual relationship, but not enough evidence to conclude that the couple were in a de facto relationship, and some of the evidence including Mr Rallings’ assessment for child support, the evidence that Ky visited his father at the Addison Avenue house to work on cars, together with the evidence of Mr Guy Rallings and Ms Gilmore would indicate they were in a de facto relationship.
On the evidence, the applicant was meeting her own expenses, living in her own home, and taking care of Ky. There was no independent evidence such as joint finances, or including each other as partners on official forms. I note that in a 2014 tax return, the applicant listed Mr Rallings as her de facto partner, but this was some time before his death and Mr Rallings was not listed as the applicant’s partner in more recent returns. The applicant gave evidence that Mr Rallings had continued to pay private health insurance for Ky, but had ‘taken her off’.
There is nothing, except the evidence of the applicant and Ky, that indicates that Mr Rallings was living with the applicant in the relevant time period.
The applicant gave evidence she did receive some support from her sister, but there is no evidence of regular payments from Mr Rallings for anything related to the Eloura Street property, or Mr Rallings paying the bills.
There is evidence from Ms Gilmore that it was her impression based on her dealings with Mr Rallings that he was living alone at the Addison Avenue property between September 2015 and his death in April 2016. In her statutory declaration of 19 June 2022, she states that following the proceedings in family court, where reconciliation was discussed between Mr Rallings and the applicant, Mr Rallings had expressed to her that he had believed that the applicant and Ky would return to live with him at Addison Avenue, however this never occurred.
It should be noted that there is some inconsistency in the applicant’s own evidence regarding when she claims she and Mr Rallings began to live together again – in her written statement dated 24 August 2021, she stated:
On 21 July 2015 Mediation conference was held. At this time Mark and I had decided that we would try to officially reconcile. The property division matter was placed on hold.
The legal agreement to reconcile was formally made at Mediation. We were able to reach that outcome easily because we had been living together for some months after I moved to the Eloura Street address anyway. The formal agreement to reconcile was merely a formalisation of what was going on for some months.
During the hearing, the applicant provided the below oral evidence:
QUESTION: ‘…Did you move back into a house with Mark, and if so, when, and if so, which house?’
ANSWER: ‘---We tried to, you know, sort things out. He would come and stay at the Eloura Street property, or I would go and stay at the Addison Avenue property. Then Mark felt ill again and he ended up in Shellharbour Hospital, and then - - -‘
QUESTION: ‘That was in August roughly, wasn’t it? So, the next month almost?---'
ANSWER: ‘Yes.’
QUESTION: ‘Yes?---'
ANSWER: ‘In August, yes, he ended up in Wollongong - Shellharbour Hospital in the psych ward, and then when he come out of that he lived with me full time at Eloura Street.’
While this inconsistency does contribute to the difficulty in determining the relationship between the applicant and Mr Rallings at the time of his death, I do not place much weight on it with regard to the applicant’s credibility.
There was also evidence from Mr Guy Rallings that he had been asked to make a statement for the purposes of the Supreme Court proceedings between Brydie and the applicant by the applicant, and that the contents of that statement – namely that the applicant and Mr Rallings had reconciled and were in a de facto relationship – were false. In his statement dated 17 June 2022, Mr Guy Rallings states that he visited Mr Rallings fortnightly at the Addison Avenue property in late 2015 and early 2016, and that during this time there was nothing to indicate any one but Mr Rallings was living at the property. He also states that Mr Rallings never indicated to him that he and the applicant had resumed their relationship.
There is evidence from both the applicant, Ky and Ms Gilmore that Mr Rallings would visit the Eloura Street property with relative regularity for dinner and would sometimes stay the night. There is conflicting evidence as to whether Mr Rallings would sleep on the couch, in Ky’s bed, or with the applicant.
The applicant submits that the letters from the respective legal representatives of the applicant and Mr Rallings, which were dated in late 2015 made reference to continuing their de facto relationship and Mr Rallings’ preparedness to “put the relationship back on course”, are evidence of the de facto relationship being re-established. I do not accept this proposition – while it may have indicated a contemporary intention of entering back into the de facto relationship, I am unable to put any further weight on these letters or assign them much importance as evidence of an ongoing de facto relationship at the time of Mr Rallings’ death in May 2016.
The applicant also submitted the water usage rates of the Addison Avenue property, namely the notable decrease in water use in the months during which it is contended that Mr Rallings was living primarily at Eloura Street with the applicant and Ky. It is difficult to assign anything but minimal weight to this evidence, as there may be any number of reasons that the water use may have decreased. Further, Mr Rallings’ absence at Addison Avenue does not guarantee his presence at Eloura Street, nor does it serve as objective evidence of a de facto relationship.
For the purposes of the SRC Act, a de facto relationship is defined in the same terms as it is listed in s 2F of the Acts Interpretations Act 1901 (Cth) (‘the AIA’). Accounting for this definition, and on the evidence before the Tribunal, all of the indicia that Mr Rallings and the applicant were in a de facto relationship were simply not present at the time he died.
As per Barwick CJ in Aafjes v Kearney (1976) 180 CLR 199 at 456, “…the question of dependence or no dependence, whole or partial, is a question of fact.”
On the evidence before the Tribunal, I am not satisfied that the applicant and Mr Rallings were in a de facto relationship prior to his death. I am also not satisfised that the applicant was living with Mr Rallings prior to his death for the purposes of s 4(5) of the SRC Act. I also find that, for the purposes of s 4(4) of the SRC Act, that the applicant would not have been wholly dependent on Mr Rallings but for Mr Rallings’ injury and incapacitation prior to his death.
The applicant rented the Eloura Street property, and there is nothing before me to suggest anyone but her (sometimes with the assistance of her sister) paid for the property and its associated amenities. There was some evidence from the applicant and Ky that Mr Rallings put money towards household costs, however the applicant’s evidence under cross-examination was that:
…he would pay all the major bills, like the mortgage and the rates and all that. I done the groceries and, you know, if Ky needed clothing I clothed them. You know, I done a lot of clothing, and the food on the table, where Mark paid the mortgage, the rates, the water, the gas, electricity.
The applicant also gave evidence that Mr Rallings was not financially responsible for anything in relation to the Eloura Street property, and the ‘major bills’ referred to were in relation to the Addison Avenue property. There was also evidence before the Tribunal that the applicant had worked relatively consistently, and also received financial assistance from Centrelink and in the form of child support.
I find that the applicant is not entitled to any benefit under s 17(3) of the SRC Act as she was not wholly dependent on Mr Rallings at the time of his death. The applicant rented her own home, and supplied clothes, groceries and other necessities for her son. The applicant worked, and received other forms of official monetary support from the government.
I accept that there is evidence that the applicant was partly dependant on Mr Rallings, particularly in regard to handling the expenses for Ky. While it is clear that the applicant was the primary caregiver to Ky, including financially, it does appear on the evidence of Ky and of the applicant that Mr Rallings provided some supplemental financial support to the applicant, including formalised child support payments and insurance payments. It is not difficult to believe that, in sharing and raising a child together, Mr Rallings, being on a higher wage and in a better financial situation than the applicant, shouldered more than his fair share of the financial burden and assisted as needed.
In Ky’s written statement dated 11 November 2021, he stated:
“I remember being able to go to both mum and dad and ask for money for things I needed for school or for weekends with my mates and both of them would give me money. My parents just seemed to operate like a normal married family where if a child needed something, they would get it from one of their parents. I knew that I had both my parents there to rely on and | felt comfortable knowing that if I needed something, my mum and my dad would be able to provide it for me.
He also recounted that his father would occasionally buy dinner for him and the applicant.
The applicant also provided to the Tribunal copies of text messages, purportedly between the applicant and Mr Rallings, which are indicative of an ongoing relationship of some kind, and a list of ‘dependence related expenses’ that the applicant claims Mr Rallings paid prior to and after their reconciliation, totally near $53,000 over around a three-year period. While it is difficult to be certain that these expenses were paid by Mr Rallings with the intention of supporting the applicant, I accept that it may be likely that, throughout the course of their co-parenting relationship prior to his death, Mr Rallings may have covered certain expenses for the applicant in relation to bills for Ky, some groceries, and the like, although it is not possible to be certain of the extent of such support.
I find that, on the evidence before the Tribunal, the applicant was partly dependant on Mr Rallings for the purpose of s 17(4) of the SRC Act. I find that she is entitled to 5% of the principal sum.
liability under s 18 of the src act
Having determined the issues with regard to s 17 of the SRC Act, I now turn to the applicant’s claim for compensation of funeral expenses under s 18 of the SRC Act. I note that in the reviewable decision, the decision-maker stated in relation to this issue:
…I now need to consider what compensation entitlements may flow from that. I am certainly satisfied that liability exists for payment of funeral pursuant to section 18 of the SRC Act but have not been provided with details as to the amount and paid same. Upon provision the appropriate information, this amount will to maximum amount payable by reason of the provision of section 18(4) of the SRC Act.
The applicant provided a claim for funeral expenses to the Tribunal and to the respondent, along with two receipts – one for an amount of $9,439.90 to Hansen & Cole, a funeral provider, dated 8 June 2016, and the other to Lakeside Memorial Park Cemetery & Crematorium in the amount of $4455 dated 5 July 2016, totalling an amount of $ 13,894.90.
The applicant claims, and the respondent agrees, that the maximum benefit payable under s 18 of the SRC Act is $11,459.25. The respondent did not provide any other submissions against the claim under s 18 of the SRC Act, nor provided any reason to the Tribunal as to why it should not award the applicant maximum benefit payable.
I find that the applicant is entitled to the maximum benefit payable under s 18, having provided evidence of the expenses paid.
Costs
I find that the respondent is to pay the applicant’s costs of the application for review, as agreed or taxed under s 67(8) of the SRC Act.
Decision
The Tribunal finds that the correct or preferable decision is that the reviewable decision, dated 26 October 2020, is varied as follows:
(a)the deceased, Mr Mark Rallings, had two dependants, being the applicant and Mr Ky Rallings, at the time of his death;
(b)the applicant and Ky Rallings were partly dependant on Mr Rallings, and therefore are entitled to benefit under s 17(4) of the SRC Act; and
(c)the applicant and Ky Rallings are entitled to a benefit of 5% and 35% of the principal sum payable under s 17(4) of the SRC Act, being $517,564.84.
(d)I find that the applicant is entitled to benefit under s 18 of the SRC Act in the amount of $11,459.25.
(e)The respondent is to pay the applicant’s costs of the application for review, as agreed or taxed under s 67(8) of the SRC Act.

I certify that the preceding 158 (one hundred and fifty-eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

...............................[SGD].........................................
Associate
Dated: 13 January 2023

Date(s) of hearing: 20 - 22 June, 28 July 2022

Date final submissions received: 29 September 2022

Counsel for the Applicant: Mr L. Grey

Solicitors for the Applicant: RMB Lawyers

Counsel for the Respondent: Mr M. Seymour

Solicitors for the Respondent: McInnes Wilson Lawyers

[2023] AATA 52

13 January 2023

Key Legal Topics

Areas of Law

Employment Law

Negligence & Tort

Legal Concepts

Causation

Damages

Remedies

Statutory Construction

Date(s) of hearing:	20 - 22 June, 28 July 2022
Date final submissions received:	29 September 2022
Counsel for the Applicant:	Mr L. Grey
Solicitors for the Applicant:	RMB Lawyers
Counsel for the Respondent:	Mr M. Seymour
Solicitors for the Respondent:	McInnes Wilson Lawyers