| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Shanahan v SHCB Constructions Pty Ltd & Ors [2024] NSWPIC 547 |
| APPLICANT: | Bridie Shanahan |
| FIRST RESPONDENT: | SHCB Constructions Pty Ltd |
| SECOND RESPONDENT: | William Machado by his tutor Cathy Lynn Shanahan |
| THIRD RESPONDENT: | Bonnie Walsh by her tutor Kate Louise Taylor |
| FOURTH RESPONDENT: | Courtney Walsh by her tutor Kate Louise Taylor |
| FIFTH RESPONDENT: | Holly Walsh by her tutor Kate Louise Taylor |
| SIXTH RESPONDENT: | Fleur Frances Walsh |
| PRINCIPAL MEMBER: | Glenn Capel |
| DATE OF DECISION: | 2 October 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Death claim; dispute in respect of the dependency of the applicant’s son of the deceased; Canute v W A Pickles (NSW) Pty Ltd ATF The William Alan Pickles Family Trust & Ors, Rose-Barnett & Ors by their representative Sharyn Gaye Rose v T A Edison Pty Ltd, TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd; Wratten v Kirkpatrick & Ors, BFG v Polyfoam (Sydney) Pty Ltd & Ors, and Slater v Newman Bros (Sawmill) Pty Ltd discussed and applied; Held – deceased stood “in loco parentis” to the second respondent; determination of dependency, apportionment, and payment of death benefit, interest and management fee. |
| DETERMINATIONS MADE: | The Commission determines: 1. The deceased worker, Shawn Walsh, died on 30 August 2023 as a result of injury sustained arising out of or in the course of his employment with the first respondent. 2. Bridie Shanahan was partly dependent for support upon the deceased at the date of death. 3. William Machado was partly dependent for support upon the deceased at the date of death. 4. Bonnie Walsh was wholly dependent for support upon the deceased at the date of death. 5. Courtney Walsh was wholly dependent for support upon the deceased at the date of death. 6. Holly Walsh was wholly dependent for support upon the deceased at the date of death. 7. Fleur Walsh was partly dependent for support upon the deceased at the date of death. 8. The deceased had no other persons dependent on him. 9. The first respondent is liable for the payment of lump sum compensation, weekly compensation, interest and the management fee. The Commission orders: 10. The first respondent is to pay the applicant lump sum compensation of $345,350.42 pursuant to ss 25(1) and 85A(1)(a) of the Workers Compensation Act 1987 (1987 Act) and s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). 11. The first respondent is to pay the sixth respondent lump sum compensation of $45,374.82 pursuant to ss 25(1)(a) and 85A(1)(a) of the 1987 Act and s 109 of the 1998 Act. 12. The first respondent to pay the applicant $159.90 per week as adjusted to date and continuing in respect of the second respondent pursuant to ss 25(1)(b) and 31(1)(a) of the 1987 Act. 13. The first respondent to pay the following amounts to the New South Wales Trustee and Guardian pursuant to ss 25(1A) and 85(1)(c) of the 1987 Act, s 109 of the 1998 Act, and cl 177 of the Workers Compensation Regulation 2016 to hold on trust until each of the second, third, fourth and fifth respondents attain the age of 18 years: (a) William Machado – $130,142.58; (b) Bonnie Walsh – $215,591.51; (c) Courtney Walsh – $169,276.07, and (d) Holly Walsh – $140,270.57 14. Liberty to the parties to apply with respect to the calculations of interest and the management fee by close of business on 4 October 2024. |
STATEMENT OF REASONS
BACKGROUND
The deceased worker, Shawn Walsh, died on 30 August 2023 arising out of or in the course of his employment with SHCB Constructions Pty Ltd (the first respondent).
On 19 September 2023, Ms Sutcliffe, the solicitor for Bridie Shanahan (the applicant), submitted a Notification Form in respect of a fatality to icare workers insurance.
On 3 November 2023, the applicant’s solicitor served a notice of claim in respect of the death of a worker on Employers Mutual Ltd (the insurer), seeking payment of the death benefit of $891,100 pursuant to s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act), weekly payments in respect of William Machado (the second respondent) pursuant to s 25(1)(b) of the 1987 Act, funeral expenses pursuant to s 26 of the 1987 Act, and interest from 3 November 2023 pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Liability was accepted by the insurer pursuant to ss 25 and 26 of the 1987 Act on 23 April 2024, subject to a determination of potential dependants.
On 9 May 2024, the first respondent’s solicitor, Mr Studdert, sought particulars and documents relevant to the alleged dependency of the second respondent from the second respondent’s solicitor.
The applicant filed an Application in Respect of Death of Worker (the Application) that was registered in the Personal Injury Commission (the Commission) on 18 April 2024. The applicant seeks the lump sum death benefit of $891,100 in accordance with s 25(1)(a) of the 1987 Act, weekly payments from 31 August 2023 pursuant to ss 25(1)(b) and 31 of the 1987 Act, funeral expenses pursuant to s 26 of the 1987 Act, interest pursuant to s 109 of the 1998 Act, apportionment pursuant to s 29 of the 1987 Act, and orders authorising payment of the lump sums pursuant to s 85A of the 1987 Act.
Bonnie Walsh (third respondent), Courtney Walsh (fourth respondent), Holly Walsh (fifth respondent) and Fleur Walsh (sixth respondent) are named as respondents.
On 29 July 2024, the insurer issued a notice pursuant to s 78 of the 1998 Act, disputing that the second respondent was dependent on the deceased at the time of his death. It claimed that the second respondent would not fall within the definition of a dependent child in s 25 of the 1987 Act, so he was not entitled to weekly payments of compensation. It cited ss 25(1)(b) and 25(5) of the 1987 Act.
PROCEDURE BEFORE THE COMMISSION
At the preliminary conference on 5 July 2024, I was informed that there was a dispute regarding the dependency of the sixth respondent. I encouraged the parties to review the evidence and see if they could reach an agreement as to dependency and apportionment.
At the further preliminary conference on 30 July 2024, I was advised that that parties had not been able to agree to a proposed apportionment of the lump sum. Further, on 29 July 2024. the insurer had issued a notice pursuant to s 78 of the 1998 Act, disputing that the second respondent was dependent on the deceased at the time of his death. As this notice was only issued the day before the conference, the matter was not ready to be listed for hearing.
At the third and final preliminary conference on 15 August 2024, I was informed that the first, third, fourth and fifth respondents disputed that the second respondent was dependent on the deceased at the date of his death. It was agreed that the solicitor for the third, fourth and fifth respondents would retain separate counsel for each party. I directed that the parties file written submissions in accordance with a timetable and if there were any objections to the admission of late documents, the parties were to include submissions relating to the objection. The parties filed submissions in accordance with the timetable. Only the sixth respondent filed submissions in reply.
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. The parties were advised of the intention to determine the dispute without holding a conciliation conference or arbitration hearing.
ISSUES FOR DETERMINATION
The first respondent is currently paying weekly compensation in respect of the third, fourth and fifth respondents pursuant to s 25(1)(b) of the 1987 Act. Further, funeral expenses have been paid.
Therefore, the following issues remain in dispute:
(a) whether there were any persons wholly or partially dependent on the deceased – s 25(1)(a) and s 25(5) of the 1987 Act;
(b) orders in respect of the payment of weekly compensation in respect of the second respondent – ss 25(1)(b) and 31 of the 1987 Act;
(c) orders in respect of apportionment of the lump sum death benefit – s 29 of the 1987 Act, and
(d) orders in relation to payment of the compensation, interest and the management fee – ss 25 (1A), 85(1)(c) and 85A(1)(a) of the 1987 Act, s 109 of the 1998 Act and cl 177 of the Workers Compensation Regulation 2016 (the 2016 Regulation).
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents;
(b) first respondent’s Reply and attached documents;
(c) second respondent’s Reply and attached documents;
(d) third respondent’s Reply and attached documents;
(e) fourth respondent’s Reply and attached documents;
(f) fifth Respondent’s Reply and attached documents;
(g) sixth respondent’s Reply and attached documents;
(h) Application to Admit Late Documents received on 1 July 2024;
(i) Application to Admit Late Documents received on 17 July 2024;
(j) Application to Admit Late Documents received on 24 July 2024;
(k) Application to Admit Late Documents received on 26 July 2024;
(l) Application to Admit Late Documents received on 30 July 2024;
(m) Application to Admit Late Documents received on 9 August 2024, and
(n) Application to Admit Late Documents received on 12 August 2024.
Oral evidence
The parties did not seek leave to adduce oral evidence or cross examine any witnesses.
REVIEW OF EVIDENCE
Statements and statutory declaration of Bridie Shanahan
Bridie Shanahan, the deceased’s partner, provided a statement and a statutory declaration on 3 November 2023. She confirmed that she had been in a defacto relationship with the deceased for 2.5 years. The deceased was a working director of the first respondent since mid-2021 and she had been employed as a casual trade assistant by the first respondent in mid-2022. She also worked as a part time registered nurse.
The applicant indicated that they had lived together since March 2021 and they had no biological children. Her son, William Machado, who was born on 2012, lived with them and he was dependent on the deceased.
The applicant advised that her partner had three daughters. Bonnie was born in 2018. Courtney was born in 2015 and Holly was born in 2014. She indicated that their mother, Fleur Walsh, was not dependent on the deceased at the time of his death. The deceased paid an additional $9,000 in child support for the financial year, so he was not paying weekly child support at the time of his death. They had custody of his three daughters for two days each fortnight.
The applicant stated that the deceased’s parents, Morrice and Robyn, and a brother Jason, were still alive, but they were not dependent on him.
The applicant confirmed that she shared household expenses with the deceased. She did not have any savings of her own. She planned to use the death benefit towards her future and that of her son.
In a statement dated 28 June 2024, the applicant indicated that the deceased and the sixth respondent entered into a spousal agreement. Both waived their right to seek spousal maintenance from the other party. It was her understanding that neither party had any future rights or entitlements to make any further claims on the other party, including for any ongoing dependency.
The applicant stated that the deceased had agreed to pay the sixth respondent $25,000 in cash, but the funds were misapplied to pay his legal fees, meaning that the deceased could only pay the sixth respondent $17,000. The balance of $8,000 was to be paid over two months. This remained unpaid at the time of his death, but forms part of the debts of the estate which have not been finalised.
The applicant stated that the deceased had paid more than his child support obligations over the 12 months prior to his death. These payments were made to the sixth respondent.
The applicant has attached a signed draft letter dated 21 August 2023 from Robb & Associates Solicitors that confirms these events. It is not the original letter or a copy, so it is unclear what weight can be given to its contents.
The solicitor, Cynthia Morrissey, advised that the deceased had been paying the sixth respondent $541.08 per week instead of $378 per week, amounting to an additional sum of $9,303.40. This seems inconsistent with Recital G in the Financial Agreement dated 4 May 2023, that referred to the weekly payment of $541.08 and not $378.
In a statement dated 9 August 2024, the applicant advised that she first met the deceased in 2009 but ceased any contact in 2014. When the sixth respondent and the deceased separated in December 2020, she reconnected with him and eventually became romantically involved.
The applicant stated that they were madly in love and shared many common interests. She moved into the deceased’s property with her son and she retained her rented property. The deceased’s marital home was sold in September 2021 and they moved to her rental property. The deceased’s name was added to the lease. When they moved to another rental property in January 2022, the deceased paid the rent of $520 per week.
The applicant stated that the deceased was allowed to keep a block of land under the terms of the divorce and they started to prepare the block for a residence. They commenced the building process. The site cut was completed and they had started moving loads of gravel for a shed to be built. They intended to obtain a joint mortgage to finance the construction. They had agreed to rent a property, but the deceased died a week before they moved in. They had tried to have a child together but were unsuccessful.
The applicant stated that they were devoted to each other and went on many family holidays with the children. They were looking forward to the future before he died.
The applicant stated that the second respondent’s biological father was absent from his life and only rarely contacted him, perhaps once or twice a year. The deceased enjoyed being a father figure to the second respondent.
The applicant stated that they maintained separate accounts because of the family law settlement and shared household expenses. The deceased paid the rent, the gas bills and the second respondent’s school fees, and she paid for the electricity and groceries. They shared costs for the needs of the children.
The applicant stated that she relied on his greater income and the deceased would transfer funds into her account. She worked for 30 hours per week as a nurse and 30 hours per week as a trades assistant for the first respondent. She was now working fulltime at Albury Wodonga Private Hospital.
The applicant stated that the second respondent was two years old when she separated from his father and his father remained in Western Australia where he was working at the time. He had slowly stopped contact and he had not called or contacted her son for over two years. She had not restricted contact. He had not contacted them following the deceased’s death. She stated that her son did not want to contact his father. She has asked her former husband to pay half of the second respondent’s high school fees and indicated that she will not allow her son to move to Western Australia.
The applicant stated that her son loved having a positive male role model around, was in awe of everything the deceased did and was keen to keep him as his father. They enjoyed shows on the television, read magazines, rode motorbikes and went hunting and fishing together.
The deceased taught the second respondent how to cook, how to grow vegetables and how to maintain the tractor. The deceased attended sport and school functions and would drop him and pick him up from schools. At times he cooked the family meals, made lunches, helped with homework and read bedtime stories.
The applicant stated that the deceased took on the second respondent as his own son and his family treated her son as part of their own. Her son indicated that he wanted to be just like the deceased when he grew up.
Statements of Cathy Lynn Shanahan
Cathy Lynn Shanahan, the applicant’s mother, provided a statement on 7 May 2024. She indicated that the deceased had a very close relationship with the second respondent and treated him as his own son. He provided both financial and emotional support. the second respondent was currently in year 6 and the deceased was assisting with his school fees.
Ms Shanahan advised that the second respondent has some health issues and requires prescription medication. She believed that the deceased would have continued to provide assistance on an ongoing basis but for his death.
In a statement dated 9 August 2024, Ms Shanahan confirmed that the second respondent had a close father/son relationship with the deceased. The deceased would pick up the second respondent from her after work and they would spend the rest of the afternoon together whilst the applicant was at work. They enjoyed watching YouTube and the television together and the second respondent looked on the deceased as a role model and father figure. They spent time together fishing, shooting, motorbike riding, camping and water skiing. The deceased always had a settling effect on the second respondent when he was troubled by his Attention-deficit/hyperactivity disorder (ADHD).
Ms Shanahan confirmed that the second respondent did not have a relationship or contact with his biological father. She was often with him on his birthdays and special occasions and she had not witnessed any phone calls or video calls from his father. As far as she was aware, there had been no contact since the second respondent was three years old
Ms Shanahan advised that the applicant had complained that the child support payments that she received were not sufficient to pay for her son’s care and special needs treatment. The applicant had stopped receiving Centrelink payments for her son when the deceased took on the second respondent as if he was his own son. She believed that the deceased would have continued to provide financial and emotional support to the second respondent on an ongoing basis.
Statement of Jason Walsh
Jason Walsh, the deceased’s brother, provided a statement on 9 August 2024. He stated that the applicant and the second respondent were significant parts of his brother’s life and he observed that they had a loving and committed relationship. Everything they did, they did as a unit. He noticed that the deceased played a significant part of the second respondent’s life.
Statement of Elira Byrne
Elira Byrne, a friend of the applicant, provided a statement on 9 August 2024. She stated that the applicant and the deceased preferred to do things together such as going camping, fishing, hunting and motorbike riding. They would regularly go away with the four children. She had witnessed a loving, committed and happy relationship between the applicant and the deceased, and she was aware that they had planned to have a child.
Ms Byrne stated that the deceased had a close father/son relationship with the second respondent, who had very little contact with his biological father. The deceased taught the second respondent how to hunt, fish, ride a motorbike, build things, and to care for his belongings. The second respondent became more confident and independent.
Statement of Shayna Hasnip
Shayna Hasnip, a friend of the applicant, provided a statement on 9 August 2024. Her statement mirrors the contents of Ms Byrne’s statement. She confirmed that the deceased treated the second respondent like his own son.
Statements of Kate Louise Taylor
Kate Louise Taylor, the sixth respondent’s stepsister, provided a statement on 14 May 2024 on behalf of the third respondent. She advised that she had known the deceased’s three daughters for their entire lives and they were close to her family. She indicated that when the sixth respondent’s marriage broke down, the two elder daughters required psychological treatment. She was worried that Bonnie might suffer from anxiety when she became a teenager and when she transitioned to high school.
Ms Taylor stated that the children struggled with the fortnightly contact arrangements with the deceased. They had no contact with the applicant since their father’s funeral.
Ms Taylor believed that the deceased would have continued to support his children’s education, health and general needs as long as required. She considered that the sixth respondent will provide all emotional and financial support to her children as they grow up.
Ms Taylor also provided similar statements on behalf of the fourth and fifth respondents. She confirmed that Courtney was progressing well at school. She stated that Holly had struggled with her father’s death and was admitted to hospital for a couple of days. She has similar concerns for Courtney and Holly as they grow older.
Statement of Fleur Frances Walsh
Fleur Frances Walsh provided a statement on 5 June 2024. She confirmed that she married the deceased in October 2010 and they separated in January 2021. After their separation, she remained financially dependent on the deceased. She had to care for her youngest daughter, Bonnie, and Courtney had just started school.
Ms Walsh indicated that when Bonnie started preschool, she obtained part time work for an air conditioning company as an administrative assistant from 9.00am to 3.00pm for two days a week. She relied heavily on the deceased’s child support payments and Centrelink payments to meet their living expenses. For the last 12 months, she had worked part-time as an administrative assistant and receptionist for 30 hours per week, earning $1,100 to $1,200 per fortnight.
Ms Walsh stated that she lives in the family home and has no mortgage. She said the family home was transferred into her name, but she had only received $17,000 in cash for spousal maintenance, and $8,000 was outstanding. The deceased paid her child support and agreed to pay for school fees. The payments were made under a private arrangement and were not controlled or supervised by the Child Support Agency. The payments varied over time and they disagreed about the amount of child support properly payable by him.
Ms Walsh included a schedule of payments in her statement that shows payments of $541.08 per week from 3 January 2021 to 6 August 2023. She believed that the deceased had been underpaying the child support under the private arrangement, but she did nothing about it. She had not received any payments since his death.
Ms Walsh stated that her partner, Joshua Zuljevic, had moved into the house about four months ago with his two daughters. They stay with the family when he has custody of them.
Ms Walsh advised that they keep their finances separate but he pays half of the utility and food bills. She paid all rates relating to the home and all other living expenses for herself and her daughters. She now paid for most of the living and education expenses of her three daughters.
Ms Walsh stated that her children dealt with their separation as best they could, but arguments impacted negatively on them. The deceased told her that he could only have custody of their children for two days every fortnight and no more.
Ms Walsh indicated that her daughters loved their father. They enjoyed spending time with him and they would go camping and motorbike riding. However, they did not want to move into the applicant’s house or spend more time with her. They seemed very fearful of being forced to stay for additional days at the applicant’s house. She confirmed that the two older daughters developed psychological issues and had required treatment before and after the deceased’s death.
Ms Walsh stated that she had suffered from anxiety and depression for the last two years and was taking medication. She also had arthritis. She advised that she would use any entitlement from the death benefit to help pay for the current and future living expenses of herself and her three daughters.
In a statement dated 23 July 2024, Ms Walsh indicated that she was still owed $8,000 due to her under the spousal agreement. She confirmed that she and the deceased had entered into a private arrangement for child support which was registered with Child Support Agency. There had been no independent assessment.
Ms Walsh stated that when the deceased entered into the relationship with the applicant, he entered figures in the Child Support Agency’s system based on estimates of what he and the applicant were earning. She believed that this underestimated the deceased’s income and reduced the child support that he was paying.
Ms Walsh stated that the deceased was paying $541.08 per week. At the time of his death, he was paying instalments of $1,082.16 in arrears. The last payment was on 6 August 2023. The arrears for the period 7 August 2023 to 30 August 2023 was approximately $1,777.83. Arrears of child support to date is approximately $27,131.30.
Ms Walsh stated that she expected that these payments would continue until each child turned 18 years of age, finished school or became independent in accordance with the Child Support Agency’s guidelines. They only referred to the payment of primary school fees in the agreement because high school seemed so far away. It was their intention that the deceased would pay for Holly’s high school fees if she attended a fee paying school.
Ms Walsh advised that the deceased saw their three daughters every second weekend and a week over the school holidays up to the time of his death. She made a claim for dependency when her solicitor wrote to the applicant on 6 May 2024.
Ms Walsh advised that she believed that the applicant was in a relationship in 2023, which was not referred to in her affidavit. She did not know her current relationship status.
Statement of William Machado
Quantumcorp provided a supplementary factual investigation on 25 July 2024. The initial report is not in evidence. The investigators interviewed Willam Machado, the biological father of the second respondent.
In a statement dated 24 July 2024, Mr Machado confirmed that he was previously married to the applicant and they divorced in approximately 2017. He stated that for the last seven to eight months he had been paying $800 per fortnight to the applicant’s bank account for child support for the second respondent. He was previously paying $600 per fortnight.
Mr Machado stated that they did not have a formal custody or child support agreement, but he believed that the payments would cover his share of his son’s school fees, extracurricular activities and needs. He was always willing to contribute and pay for additional expenses whenever he could.
Mr Machado stated that the applicant had asked that he pay half of the second respondent’s high school fees for next year in addition to the $800 per fortnight support payments. He indicated that he travelled to New South Wales from his residence in Western Australia as often as possible to visit his son, but he has not been able to do this following the pandemic. He tried to speak with his son as often as possible, but the time difference caused some issues.
Documents
The death and marriage certificates of the deceased and the birth certificates of the deceased, the applicant, and minor children are in evidence.
There are copies of the deceased’s Westpac bank statements, a residential tenancy agreement in both names dated 14 January 2022, child support and spouse maintenance agreements between the deceased and the sixth respondent dated 4 May 2023 and consent orders in the Federal Circuit and Family Court of Australia dated 9 June 2023. All of these documents are consistent with applicant’s evidence.
Under the spouse maintenance agreement, the deceased was to pay $541.08 per week to the sixth respondent for child support. The sixth respondent retained ownership of the family home, some motor vehicles and she received cash and superannuation payments. The deceased was responsible for the school fees of their three daughters and he agreed to pay the sixth respondent $60,000 for maintenance. It was noted that $35,000 had already been paid and $25,000 was still outstanding.
In a letter dated 28 June 2024, the solicitor for the second respondent advised that Mr Machado had been paying the applicant $600 per fortnight for child support, and this had recently increased to $800 per fortnight. These payments were made in accordance with assessment undertaken by the Child Support Agency.
The second respondent has filed medical reports from his general practitioner, Dr Freeth, a paediatricians, Drs Turner and Newsom, and a psychologist, Mr Chuck. They confirm that the second respondent has ADHD and psychological issues.
According to Dr Turner’s report dated 6 April 2022, the second respondent had experienced some emotional issues in the context of known anxiety and recent changes in his life including a home invasion, moving back to Albury and moving in with the deceased, whose daughters visited on weekends every two weeks.
There is a medical report from a psychologist who is counselling the fourth and fifth respondents to assist them to cope following the loss of their father. The school records have been included and there is other medical evidence which is of minimal assistance.
The sixth respondent has provided copies of her bank and medical records.
SUBMISSIONS
Applicant’s submissions
The applicant’s counsel, Ms Young, submits that the applicant does not dispute that the third, fourth, fifth and sixth respondents were dependent on the deceased at the time of his death. The applicant also adopts the submissions of the second respondent regarding his dependency. She submits that the fourth respondent suffers anxiety and is undergoing treatment. There is no evidence of any other health concerns or similar relating to the third, fourth and fifth dependents such as to warrant a greater apportionment of the lump sum death benefit for special needs.
Ms Young submits that the applicant has the greatest entitlement to the death benefit, as her dependency extends beyond that of the respondents. The applicant was in a relationship with the deceased, they had started to build a home, they had planned to have children and had discussed marriage. They were committed to each other and went on family holidays.
Ms Young submits that the deceased paid the rent, the second respondent’s school fees and he regularly transferred money to the applicant for living expenses. Her evidence was corroborated by Mr Walsh, Ms Byrne and Ms Hasnip. Their evidence is of value.
Ms Young submits that it is appropriate to consider the possibility that the relationship between the applicant and the deceased would have come to an end at some point. She submits that it is clear that the applicant had an expectation of an ongoing and long-lasting dependency on the deceased, and this was likely to extend at least until the deceased reached retirement age, if not beyond. There is no evidence relied on by the respondents that the relationship between the applicant and the deceased was anything but genuine and permanent.
Ms Young submits that there can be no serious challenge to the applicant’s credit. The sixth respondent’s evidence regarding the applicant’s relationships is uncorroborated and the source of her belief has not been disclosed. No weight can be given to her evidence. Further, there is no evidence in these proceedings regarding requests made of the applicant to confirm her relationship status after the deceased’s death.
Ms Young submits that the sixth respondent’s submissions regarding inconsistencies with respect to the applicant’s evidence and expenses paid for by the deceased can be rejected because the applicant and the deceased did not move in together into their rental accommodation until September 2021.
Ms Young submits that the sixth respondent did not particularise the extent of her dependency on the child support payments compared to the dependency of the third, fourth and fifth respondents. Her dependency is now reduced due to her relationship with Mr Zuljevic, who contributes 50% to the utility and food bills. She has no expenditure for rent or mortgage repayments. Therefore, there is a real question as to the extent of the sixth respondent’s dependency on the deceased compared to the third, fourth and fifth respondents when the deceased was making one payment per week.
Ms Young submits that the sixth respondent is in receipt of weekly compensation for each of her children, currently $166.40 per child per week. Given that the deceased was paying child support that equated to $180.36 per child, the difference is $14.06 per child per week, and this will dimmish and reduce to nil with indexation, so the weekly benefits paid to the sixth respondent for the benefit of the third, fourth and fifth respondents will stand in the place of the child support payments paid by the deceased.
Ms Young submits that the sixth respondent’s entitlement should be modest, consistent with the reasoning in BFG v Polyfoam (Sydney) Pty Ltd & Ors,[1] which had a similar factual situation. In that matter, the ex-partner was found to have a modest entitlement that related to the periods when her children resided with the deceased and the deceased’s responsibility for school fees.
[1] [2022] NSWPIC 724 (BFG).
Ms Young submits that according to the sixth respondent, her children did not spend time with the deceased or the applicant, meaning that the sixth respondent’s dependency should be reduced. Further, as the children grew older and became more independent, the time spent with the sixth respondent [sic] and the deceased would have decreased, and along with it the sixth respondent’s dependency on the deceased. The apportionment of 14% submitted by the sixth respondent is inconsistent with the evidence.
Ms Young submits that the death benefit should be apportioned as follows:
(a) applicant: 54%;
(b) second respondent: 8%;
(c) third respondent: 14%;
(d) fourth respondent: 11%;
(e) fifth respondent: 8%, and
(f) sixth respondent: 5%.
First respondent’s submissions
Mr Studdert, the first respondent’s solicitor, submits that the second respondent was neither a child of the deceased nor a stepchild of the deceased, so there needs to be a determination as to whether the deceased was “in loco parentis” in respect of the second respondent at the time of his death. One needs to examine the nature or existence of the child’s relationship with the absent biological parent.[2]
Mr Studdert submits that in his statement, Mr Machado indicated that he was making regular financial contributions in respect of the second respondent’s upkeep and these continue at $800 per fortnight. These funds went towards his share of school fees and extra-curricular activities. He was currently assisting with the paper work for this son’s high school enrolment and he stated that he was willing to assist his son with anything extra such as shoes and school books.
Mr Studdert submits that Mr Machado stated that he travelled from Western Australia to New South Wales as often as possible to visit his son and did this more often prior to the pandemic. He submits that there were strict border restrictions in place in Western Australia over this period and this would have impacted on the regularity of his physical visits to New South Wales.
Mr Studdert submits that Mr Machado stated that he facetimed with his son as often as possible but they could not speak every day because of work and school commitments together with the time delay. Such contact would not have been readily evident to the witnesses who have suggested a lack of contact. He also expressed a desire that his son move to Western Australia in some point in the future.
Mr Studdert submits that the first respondent does not suggest the deceased did not have a caring relationship with the second respondent but maintains that in circumstances where Mr Machado has demonstrated a strong commitment to his son through ongoing financial payments and regular facetime contact together with his expressed desire for his son to live with him in Western Australia in the future, it could not be said the deceased stood “in loco parentis” in respect of the second respondent. Therefore, he submits that the first respondent has no liability to make weekly payments to the second respondent pursuant to s 25 (1)(b) of the 1987 Act.
Second respondent’s submissions
The second respondent’s counsel, Ms Warren, submits that the second respondent resided with the applicant and the deceased and but for his death, the deceased would have supported the second respondent for the entirety of his working life. It is not conceded that the support would have ceased once the second respondent attained 18 years of age.
Ms Warren submits that the second respondent fulfills the definition of a stepson of the deceased as defined in the 1987 Act. A “stepchild” is not defined in the Acts or in the regulations. The Acts do not limit the term to exclude children from de facto relationships to be identified as a stepchild of the deceased. She submits that s 4 of the Family Law Act 1975 defines a stepparent to include someone who is a de facto partner of a parent of the child. The deceased was the stepparent of the second respondent for the purposes of the death benefit and weekly compensation.
Ms Warren submits that in the alternative, the deceased stood in the place of a parent to him as defined in s 25(5) of the 1987 Act and consistent with the reasoning in Rose-Barnett & ors by their representative Sharyn Gaye Rose v T A Edison Pty Ltd.[3]
[3] [2008] NSWWCCPD 10 (Rose-Barnett).
Ms Warren submits that the deceased provided the second respondent with emotional as well as financial support. The second respondent lived with the applicant and the deceased [sic] as a family, they had plans to marry and for the applicant and the second respondent to take on the deceased’s surname. He financially supported the applicant and this was for the benefit of the second respondent.
Ms Warren submits that the deceased paid rent for the rental property where they resided, provided the second respondent with financial and emotional support and assisted the applicant with the payment of the second respondent’s school fees.
Ms Warren submits that the deceased encouraged the second respondent with his schooling, paid for his medication and was a father figure. He participated in various activities, provided the second respondent with emotional support and was involved in his upbringing. He attended the second respondent’s school and sport functions, cared for him independently of the applicant and assisted him with his schoolwork. Cathy Shanahan indicated that the deceased treated the second respondent “as if he was his own child” and they had a close relationship. The nature of the relationship was confirmed by Mr Walsh, Ms Byrne and Ms Hanip.
Ms Warren submits that the fact that a biological parent also plays a role in the upbringing of the child does not disqualify a child from coming within the definition in s 4 of the 1998 Act, consistent with the reasoning in Rose-Barnett. She submits that Mr Machado’s involvement does not minimise the deceased’s relationship with the second respondent.
Ms Warren submits that the level of involvement asserted by Mr Machado in the second respondent’s life is disputed by the second respondent and the applicant. Mr Machado admits that he had not visited the second respondent since 2019 and gave no real evidence as the frequency of his asserted facetime calls. The applicant indicated that the contact is extremely limited and he has not called the second respondent for two years.
Ms Warren submits that the evidence of Mr Machado is vague and fanciful. It ought not be accepted that there is any probability of the second respondent relocating to Western Australia. The relationship was limited to a payment of $800 per fortnight and the recent potential payment of his high school fees.
Ms Warren submits that the evidence demonstrates the minimal interaction between Mr Machado. The financial contribution is not determinative on the nature of the relationship between the deceased and the second respondent.
Ms Warren submits that the deceased “played a real and significant role” in the second respondent’s life, and that the deceased accepted “a real and meaningful responsibility” for the maintenance, welfare, education, and upbringing of the second respondent. The deceased stood in the place of a parent with respect to the second respondent.
Ms Warren submits that the issue of dependency is not limited to financial dependency alone. The determination is not limited to past circumstances but also reviewing future probabilities and the likely expectation of support into the future. The deceased provided financial and emotional support to the second respondent. This was likely to have continued but for his death and was unlikely to cease even when the second respondent attained 18 years of age. The second respondent was partly dependent for support on the deceased for the purposes of s 25(1)(a) of the 1987 Act.
Ms Warren submits that the second respondent is currently 11 years old, and the financial and emotional support was expected to continue indefinitely but for the death of the deceased. He has ADHD and requires ongoing medical review and medications. The second respondent agrees with the applicant’s proposed apportionment and disagrees with the apportionment of the lump sum death benefit proposed by the other parties.
Third respondent’s submissions
The third respondent’s counsel, Ms Balendra, submits that the applicant was dependent on the deceased at the time of his death, but they were only in a relationship for two years. Her statements that provide little assistance other than confirming that they were in a domestic relationship.
Ms Balendra submits that there is no dispute that the third, fourth and fifth respondents were dependent on the deceased at the time of his death. The deceased was paying child support and he had a close personal relationship with them. The fifth respondent appears to have been the most affected by the separation of her parents and the death of her father.
Ms Balendra submits that there is no dispute that the sixth respondent was dependent on the deceased due to the circumstances of the financial arrangements and the deceased's separation. The sixth respondent will be responsible for the continued financial support of her children and this should be taken into account when considering apportionment.
Ms Balendra submits that the third respondent adopts the submissions of the first, fourth and fifth respondents in relation to the alleged dependency of the second respondent.
Ms Balendra submits that Cathy Shanahan’s evidence regarding the cessation of Centrelink payments to her daughter and the comment that the deceased was assisting with the second respondent’s school fees was in direct contradiction with Mr Machado’s statement. Mr Machado stated that the payments of $600 and then $800 per week were to pay for expenses including school fees.
Ms Balendra submits that Mr Machado maintained that he remained in contact with his son through facetime, contrary to the assertion by the applicant that he has had no contact in two years. There is no dispute that Mr Machado has been providing financial support.
Ms Balendra submits that there is no evidence to support the applicant’s evidence that the deceased would have paid for half of the second respondent’s school fees. Mr Machado had made regular payments to assist with the payment of his son’s expenses and 50% of his high school fees are to be paid by him.
Ms Balendra submits that the second respondent has two surviving parents. His father continues to make financial provision as well as support for his child. There is no suggestion that the deceased did any more than provide benefits or services to another member of the family. The evidence of Mr Machado, in circumstances where he is disinterested in the outcome of the proceedings, should be preferred to that of the applicant and the applicant's mother. The second respondent was not dependent on the deceased at the time of his death and has no entitlement to the death benefit or weekly compensation.
Ms Balendra submits that it is likely that the deceased would have continued to support his biological children until at least the age of 18. It is unlikely that he would have supported the second respondent in the manner suggested by the applicant because Mr Machado was already providing support for him.
Ms Balendra submits that the applicant has demonstrated dependency, but she has financial means. She worked as a nurse and a trades assistant and currently works full time. This is in contrast to the position of the sixth respondent who has greater financial responsibilities and is only working part-time. She submits that the lump sum should be apportioned as follows:
(a) applicant: 40%;
(b) second respondent: 0%;
(c) third respondent: 20%;
(d) fourth respondent: 17.5%;
(e) fifth respondent: 17.5%, and
(f) sixth respondent: 5%.
Fourth respondent’s submissions
The fourth respondent’s counsel, Ms Clingan, submits that the applicant was in a domestic relationship and shared expenses with the deceased. She submits that the evidence confirms that the third, fourth, fifth and sixth respondents were dependent on the deceased at the time of his death.
Ms Clingan submits that the fourth respondent disputes that the second respondent was dependent on the deceased. He was not “in loco parentis”. Emotional support is not enough and dependency is not limited to financial support.[4]
[4] Richardson v Turfco Australia Pty Ltd [2016] NSWWCCPD 43 (Richardson); and Canute.
Ms Clingan submits that the second respondent is supported by his father, Mr Machado, who pays $800 per fortnight in child support as well as 50% of his school fees. He resides in Western Australia, but he speaks with his son over facetime, although the time difference causes some difficulty. The second respondent is not entitled to a share of the lump sum benefit or weekly compensation.
Ms Clingan submits that the fourth respondent was dependent on the deceased for shelter, board, educational, and emotional support. She had a reasonable expectation to continue to receive support from him. The deceased was her father. Following his death her mother is her sole parent, and her mother is only able to work part time while she raises her children. The fifth respondent is in a similar position, but she should obtain a larger proportion as she is younger than her siblings. She makes no submissions in respect of the sixth respondent.
Ms Clingan submits that the lump sum should be apportioned as follows:
(a) applicant: 45%;
(b) second respondent: 0%;
(c) third respondent: 20%;
(d) fourth respondent: 15%;
(e) fifth respondent: 15%, and
(f) sixth respondent: 5%.
Fifth respondent’s submissions
The fifth respondent’s counsel, Ms Saleh, submits that the applicant and the deceased were in a de facto relationship and entered into a lease in respect of their rental premises. She submits that the applicant, the third, fourth, fifth and sixth respondents were dependent on the deceased.
Ms Saleh submits that the deceased was not “in loco parentis” or acting in the place of a parent of the second respondent at the time of his death consistent with the principles discussed in Canute, so he is not entitled to a share of the lump sum benefit or weekly compensation.
Ms Saleh submits that Mr Machado has continued to provide financial support to assist with his son’s expenses and this is paid into the applicant’s bank account in accordance with an informal agreement. He also indicated that he was willing to contribute extra for expenses, shoes and school books, as well as 50% of his son’s high school fees. Whilst the second respondent resided with the applicant and the deceased, who both covered the household expenses, at all times the second respondent was financially supported by his biological father.
Ms Saleh submits that Mr Machado resides in Western Australia but travels as often as possible to New South Wales to visit his son. The pandemic impacted on his travels due to border closures. Mr Machado indicated that he contacted his son via video call as often as possible, but the time difference is an issue. She submits that Mr Machado is involved in his son’s life in the capacity of a father despite the difficulties experienced living in different states, contrary to what the applicant says. He is also keen for his son to move to Western Australia.
Ms Saleh submits that Mr Machado is present in his son’s life. He is in regular contact as often as possible and he willingly provides financial support.
Ms Saleh submits that the deceased was making payments to the sixth respondent for the support of his three children, so they were dependent on him at the time of his death and it is reasonable to accept that this dependency would have continued until each of them reached 18 years of age.
Ms Saleh submits that the fifth respondent is only 10 years old and attends primary school. She required counselling sessions following her parent’s separation and the loss of her father. She continues to and will likely require psychological counselling directly as a result of the death of her father and will be dependent on financial support for those counselling sessions up until age 18. The deceased was also responsible for the payment of school fees in addition to the child support payments.
Ms Saleh submits that the applicant was in a defacto relationship, she resided with the deceased and she contributed to the household expenses. She submits that the applicant indicated that she would put some of the funds towards her son’s future. Her intentions regarding the funds must be given weight. Her entitlement should reflect her intentions and be reduced accordingly.
Ms Saleh submits that the fifth respondent is the eldest of the deceased’s biological children and bears a heavy burden to represent a good example in managing her emotions in the presence of her two younger siblings. The fourth respondent will likely experience similar if not identical struggles as she has also been diagnosed with an anxiety condition that is presently being managed with psychological treatment. The third respondent was too young at the time of her father’s death and may not require psychological treatment in the future. Her needs will likely be slightly higher noting her dependence will longer in length than her older siblings. She agrees with the apportionment proposed by Ms Balendra for the third respondent.
Sixth respondent’s submissions
The sixth respondent’s counsel, Mr Shipp, agrees that the applicant was dependent on the deceased at the time of his death, but submits that her credit must be considered carefully because she has been rather less than forthcoming about any relationships that she has been in following the deceased’s death despite specific requests for this information. Further, she stated that her son had not been in contact with his biological father, but she later inconsistently said that he had not contacted her son in over two years. A letter of Nikolovski Lawyers indicated that “our client does not have any contact with his biological father” and it was alleged that the applicant did not hold his contact details.
Mr Shipp submits that this evidence is directly contradictory to her statement where she indicated that she had contacted Mr Machado and asked for him to pay school fees. Mr Machado also deposed that she contacted him to ask for him to increase his child support payments. This also seems at odds with the statement of Ms Hasnip and the statement of Mr Machado, who advised that he spoke with his son via facetime as often as possible. Caution should be exercised in accepting the applicant’s evidence, given these inconsistencies.
Mr Shipp submits that the length of her relationship with the deceased is a relevant factor in determining apportionment. She was in a relationship with the deceased for only 2.5 years. The deceased had been in a relationship with the sixth respondent for 14 years and they had been married for 10 years and 3 months. The prospect of re-partnering reduces the level of dependency.[5]
[5] Slater v Newman Bros (Sawmill) Pty Ltd [1965] WCR(NSW) 168, (Slater).
Mr Shipp submits that at the time of the deceased’s death, the applicant was employed as a registered nurse and a casual trades assistant. She did not disclose her earnings and how they compared to the deceased’s earning, other than saying that he earned more. She said that she worked 60 hours per week before accident and that she kept her finances separate. It is clear that she has significant capacity for work and she is now working full time because her son is at school. He submits that she was not wholly dependent on the deceased.
Mr Shipp submits that the applicant’s evidence regarding rent payments and living expenses is not corroborated. Her evidence that the rent is $520 per week does not accord with the rental agreement. There are no payments for rent in the bank statements and no obvious payments for other items such as school fees.
Mr Shipp submits that it is appropriate to consider the possibility that the applicant’s relationship with the deceased would have come to an end at some point. He submits that much of the material provided by the applicant do not assist.
Mr Shipp submits that the sixth respondent adopts the position of the first respondent regarding the alleged dependency of the second respondent. Mr Machado pays child support for his son and will also pay half of his school fees and any extra expenses that his son requires. He might also live with his father at some stage. According to Dr Turner’s report dated 6 April 2022, the second respondent experienced anxiety after he moved in with the deceased.
Mr Shipp submits that there is no evidence that the second respondent’s upkeep exceeded the child support payments or that the applicant required monies over and above her own earnings to support him. She had supported him for many years before she commenced the relationship with the deceased. The child support will continue until the second respondent turns 18 years of age and will; amount to $124,800. These payments are far above the $160 per week paid to the sixth respondent by the deceased for each of his children until the date of his death.
Mr Shipp submits that the deceased paid child support of $541.08 per week plus school fees for his three biological children. The total yearly school fees for the three children are in the order of $4,741.80. It is anticipated that they will go to Xavier High School, where fees are estimated to $4,745 per child. A discount of 20% applies for the second child, 50% for the third child, meaning a yearly fee of as much as $10,903.50. According to Ms Walsh, there was an expectation that school fees would continue to be paid into high school.
Mr Schipp submits that the deceased’s biological children do not have any health issues, apart from some anxiety. Their situation cannot be considered equivalent to that of the second respondent. The period of dependency might also extend beyond 18 years of age as mature young men and women often retain a level of dependence on their parents into early adulthood. Therefore, it would be appropriate to assume that the three biological children would have remained dependent on the deceased until they turned 22 to 25 years of age.
Mr Schipp submits that the sixth respondent remained dependent on the deceased at the time of his death. She could not work full time as the third respondent was only two years old and she obtained part time work for two days per week when her daughter turned three years old. She has not been in receipt of child support payments since the death of the deceased.
Mr Schipp submits that the sixth respondent is working for 30 hours per week and earns a net amount of $500-550 per week. It would be reasonable to infer that she would have been dependent for the period in which her three children lived with her and could have ended when the youngest child turned 22 to 25 years of age.
Mr Schipp submits that the sixth respondent has some health issues and requires treatment for anxiety and depression and takes pain medication. She is in a relationship with Mr Zuljevic, who has two young children. They keep their finances separate apart from utility and food bills. She is responsible for the rates on her premises. There remains an outstanding debt for spousal maintenance of $8,000.
Mr Schipp submits that the death benefit should be apportioned as follows:
(a) applicant: 25% ($222,275);
(b) second respondent: 0% ($0);
(c) third respondent: 22% ($196,042);
(d) fourth respondent: 20% ($178,220);
(e) fifth respondent: 19% ($169,309), and
(f) sixth respondent: 14% ($124,754).
Mr Schipp submits that if the Commission determines that the second respondent was dependent on the deceased at the time of his death, his entitlement should be limited to 5% or $44,555 but only if the biological children each receive at least 20% or $178,220, noting that the second respondent will receive $124,800 independently of these proceedings.
In reply, Mr Schipp submits that the applicant and the deceased has not started building a home and it is disingenuous to characterise their conduct in that fashion. He submits that the applicant indicated that they were sharing finances, but she also said that they kept their finances separate. She failed to provide a statement regarding any subsequent relationships and seeks to avoid the issue. Further, she does not cavil with his submissions regarding the inconsistencies in her statements regarding the lack of contact with Mr Machado. There can be no confidence in the applicant’s credit.
Mr Shipp submits that although Ms Young submitted that the deceased would have seen less and less of his daughters as time went by, reducing the amount of the dependency of the sixth respondent, this appears to be a statement about the deceased’s character that the sixth respondent is not prepared to make. It is no more than mere speculation and should not be accepted.
Mr Shipp submits that the second respondent adopts the evidence of the applicant regarding his contact with his father, but the applicant’s evidence is inconsistent. No attempt has been made by the second respondent or the applicant to reconcile those inconsistencies and no confidence can be had as to the accuracy of the applicant’s evidence.
Mr Shipp submits that Mr Machado’s financial contribution to the applicant far exceeded what was ever paid by the deceased for his three daughters. The contribution was not limited. If the second respondent was dependent on the deceased, it was limited to emotional support and the level of apportionment should be low.
REASONS
Dependency
It was confirmed in Warilla Timber and Hardware Pty Ltd v Newton,[6] Albury Real Estate Pty Ltd v Rouseand anor[7] and in Richardson that the term “support” in s 25 of the 1987 Act is not limited to financial support and encompasses other multifactorial aspects including assistance with day-to-day activities and emotional support.
[6] (1995) 11 NSWCCR 546, [554] to [555].
[7] [2006] NSWWCCPD 139, [45] to [50].
In TNT Group 4 Pty Limited v Halioris,[8] McHugh JA stated:
“Dependency is a question of fact: Potts v Niddre & Benhar Coal Co Ltd [1913] AC 531 at 539, 542; Aafjes v Kearney (1976) 50 ALJR 454 at 456, 457 and 459. It is concerned with actual and not theoretical support. A person claiming dependency need not be in actual receipt of support at the date of death. It is enough that, as at that date, he or she had a reasonable expectation of support in the future. Dependency may exist at the date of death although actual support cannot or is unlikely to occur until a future time.”[9]
[8] (1987) 3 NSWCCR 10; 8 NSWLR 486 (Halioris).
[9] Halioris, [489].
Further, in Kaur v Thales Underwater Systems Pty Ltd,[10] President Keating stated:
“The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they existed at that date;”[11]
and
…‘past events and future probabilities’ have to be considered. (Aafjes v Kearney 180
CLR 199; 8 ALR 455; 50 ALJR 454, 456, 457 and 459 (Aafjes)).”[12]
[10] [2011] NSWCCPD 6 (Kaur).
[11] Kaur, [126].
[12] Kaur, [148].
At the preliminary conferences in this matter, the issues were identified by the parties. They agreed that all bar the second respondent were dependent on the deceased at the time of his death. It therefore comes as a surprise that Mr Schipp submits that there are credit issues with applicant’s evidence. Presumably this relates to the question of apportionment. If there are in fact credit issues, Mr Schipp’s failure to test the applicant’s evidence under cross examination makes it extremely difficult for me to make a determination adverse to the applicant.
Mr Schipp submits that the applicant’s evidence must be viewed with caution because there are some inconsistencies between the applicant’s statement and the letter of particulars from Nikolovski Lawyers regarding the applicant’s contact with Mr Machado. Further, she had not been forthcoming about any relationships after the deceased’s death despite specific requests for this information and there were inaccuracies in her statements.
Given that the authors of the particulars letter and the applicant’s statement are different, I consider that this first submission carries little weight.
Ms Harris completed the letter dated 28 June 2024 on behalf of her client, the second respondent. It is unclear who provided Ms Harris with those instructions. It may well have been Cathy Shanahan, who is identified as his tutor in these proceedings.
In that letter, Ms Harris indicated that the second respondent did not have any contact with his father. In her statements, the applicant stated that Mr Machado rarely contacted his son, perhaps once or twice a year. She did not say when this contact happened. They separated when the second respondent was two years old, in 2014. Later she indicated that
Mr Machado had not contacted his son for two years.In my view, whilst this is somewhat confusing, it does not necessarily mean that the evidence is inconsistent. One could easily infer from this evidence that in the earlier years, Mr Machado did in fact maintain some contact, but this diminished in time. Even if there is some inconsistency. I do not believe that it is of a degree that would challenge the reliability of the applicant’s evidence.
Further, the absence of a statement from the 11 year old second respondent to reconcile the alleged inconsistencies in the applicant’s statement is not in my view detrimental to the interests of the second respondent or his mother.
There is no merit in Mr Schipp’s submission that the applicant and the deceased had not started building a home. According to the applicant, they had started to clear the block and moved gravel in preparation for construction. That is part and parcel of building a home.
There is also no merit in Mr Schipp’s submission about the applicant’s financial situation. She indicated that they kept separate accounts but she also said that they shared expenses and she relied on payments from the deceased. This evidence is not controversial.
Further, whilst it is true that the applicant did not mention her relationship status in her statements, I have seen no requests for particulars, so this submission carries no weight. It is also not surprising that the applicant did not provide a statement addressing Mr Schipp’s concern, because this had never been raised at any time before his submissions.
Ms Walsh indicated that she believed that the applicant had been in a relationship in 2023, but no precise details have been provided. She was also unaware if the applicant was currently in a relationship. The test of dependency is at the time of death, and what has happened thereafter might be relevant when one considers apportionment. This evidence is vague and not corroborated, so minimal weight can be given to it.
The applicant was in a loving relationship and whilst they had only been together for 2.5 years, they had plans for the future. I am satisfied from the applicant’s evidence, which is supported by her mother and friends, that their relationship would lasted well into the future but for the deceased’s untimely death.
According to the applicant evidence, she and the deceased shared the household expenses. The deceased paid the rent, the gas bills and the second respondent’s school fees, and she paid for the electricity and groceries. She had no savings of her own and relied on the deceased’s greater income.
It is true that the bank statements do not disclose rental payments, but they related to a period when the applicant and the deceased were not residing in rental accommodation.
It is unfortunate that some of the applicant’s evidence regarding the finances is not corroborated by detailed documentary evidence, but that does not mean that her evidence is unreliable. She has independent witness evidence that supports her claim and I have no reason to doubt the veracity of her evidence.
The submission by Ms Balendra that there is no evidence to support the applicant’s statement that the deceased would have paid for half of the second respondent’s school fees and 50% of his high school fees is incorrect. The applicant’s statement is evidence of these facts and the deceased cannot give evidence of any agreement. What is true is that there is no evidence to corroborate what she says.
The fact that Mr Machado was paying child maintenance and was doing the paperwork regarding school fees also does not mean that the applicant’s evidence should be rejected.
Given that the applicant was employed at the time of the deceased’s death, I am satisfied that the applicant’s evidence and that of Cathy Shanahan, Elira Byrne and Shayna Hasnip confirms that the applicant was partly dependent on the deceased at the time of his death.
Apart from the applicant and the second respondent, all of the parties dispute that the second respondent was dependent on the deceased at the time of his death because the applicant was in receipt of child support payments from Mr Machado.
According to the third, fourth, fifth and sixth respondents, the deceased was not “in loco parentis” in respect of the second respondent at the time of his death for the purposes of s 25(5) of the 1987 Act.
Section 25(5) of the 1987 Act provides:
“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.”In Canute, Senior Member Beilby reviewed the authorities regarding “in loco parentis” and commented:
“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.
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.”[13]
[13] Canute, [46]-[47].
Further, in Rose-Barnett, Roche DP commented about the significance of the involvement of a biological father as follows:
“Whilst there is evidence that the boys had contact with their biological father, that evidence does not enable a conclusion to be drawn about the nature of that relationship or whether it was one that would have precluded Mr Hunt standing in the place of a parent. No authority has been cited to suggest that a relationship with a biological parent necessarily prevents a person from standing in the place of a parent. In Chartier, the Court merely noted the relationship with the biological parent is one factor to take into account. The question is whether, in all the circumstances, Mr Hunt stood in the place of a parent in his relationship with the boys. The fact that they still had contact with their biological father did not diminish the nature of the relationship they had with Mr Hunt and did not preclude him from standing in the place of a parent under the terms of the 1998 Act.”[14]
[14] Rose-Barnett at [53].
According to Mr Machado’s evidence, he was making regular child support payments to the applicant. He stated that he would pay for anything extra that he needed and was assisting with his high school enrolment. He indicated that he visited his son as often as possible and did this more often prior to the pandemic. He facetimed with his son as often as possible subject to work and school commitments and the time delay. He also wanted the second respondent to move to Western Australia in the future. It is submitted by those who dispute the second respondent’s dependency that that these facts show a strong commitment as a father figure who supported his son emotionally and financially.
Mr Machado’s evidence needs to be considered in the context of the evidence that support’s the dependency of the second respondent.
The fact that the applicant was in receipt of child support payments from Mr Machado does not mean that the second respondent was not financially and emotionally dependent on the deceased at the time of his death. Further, even though Dr Turner indicated in April 2022 that the second respondent experienced anxiety after he moved in with the deceased, this was in the context of a number of issues and this report was compiled well before the deceased’s death. It does not mean that the second respondent was not dependent on the deceased.
The submissions of those who dispute the second respondent’s dependency do not engage with the evidence of the applicant, Cathy Shanahan, Elira Byrne and Shayna Hasnip regarding the significant financial, emotional and other support that the deceased provided to the second respondent.
According to the applicant, Mr Machado was absent from the second respondent’s life and perhaps only contacted him once or twice a year. She indicated that he had slowly stopped contact and he had not called or contacted her son for over two years. She also stated that her son did not want to contact his father. This evidence differs from that of Mr Machado, but it has not been challenged by Mr Machado in a further statement.
The applicant’s evidence is supported by that of Cathy Shanahan. Her evidence is particularly compelling. She was often with the second respondent on his birthdays and special occasions and she had not witnessed any phone calls or video calls from his father.
One would have thought a loving parent would have at least contacted his son on his birthday. She also stated that as far as she was aware, there had been no contact since the second respondent was three years old. Her evidence has not been challenged by Mr Machado. Ms Byrne and Ms Hasnip also indicated that the second respondent had very little contact with his biological father.
Cathy Shanahan mentioned that the applicant had complained that the level of the support payments and claimed that they were not sufficient to cater for her son’s care. The payments equate to about $43 to $57 per day which seems to be a small amount, given the second respondent’s special needs.
Ms Balendra submits that Cathy Shanahan’s evidence regarding the cessation of Centrelink payments and the assistance provided by the deceased with the second respondent’s school fees was in direct contradiction with Mr Machado’s statement. It is difficult to determine whose evidence caries more weight in the absence of oral evidence.
The absence of evidence that the second respondent’s upkeep exceeded the child support payments or that the applicant required monies over and above her own earnings to support the second respondent does not mean that the second respondent was not financially and emotionally dependent on the deceased, nor does the fact that the applicant supported the second respondent before she commenced the relationship with the deceased.
In the absence of oral evidence, it is difficult to assess whose evidence should be preferred. The applicant has support of three people and whilst it might be suggested that these statements are self-serving, given that they are from the applicant, her mother and two close friends, Mr Machado’s statement contains various vague comments that are not corroborated by any independent evidence.
It has been suggested that Mr Machado has no interest in the outcome of this dispute, so his evidence should be accepted. However, one would have thought that a devoted father would have wanted the best for his son and would have provided support for an entitlement to the lump sum benefit and weekly compensation. Therefore, this submission carries little weight.
Mr Machado stated that he used to visit his son on a more regular basis before the pandemic. He gave no indication when and how often this occurred with any precision and he failed to provide evidence to support his assertions, such as airline tickets, tax invoices, accommodation receipts and the like. Telephone records might have also assisted. Similarly, the post pandemic evidence is vague and corroboration is lacking. Therefore, I consider that less weight can be given to his evidence.
Given the child support payments that were paid by Mr Machado, it is arguable that the second respondent was partly dependent on his biological father, but that does not mean that he was not dependent on the deceased.
According to the applicant, the deceased paid for various household expenses, such as the rent, the gas bills and the second respondent’s school fees. They also shared costs for all the children. This would have been of benefit to the second respondent.
Of greater significance was the fact that the deceased treated the second respondent as his own son. They watched shows on the television, read magazines, rode motorbikes, and went hunting and fishing with the second respondent. He taught him other life skills like a father would.
The deceased was a father figure for the second respondent and there is no evidence to challenge the evidence regarding the financial, emotional and other support provided by the deceased to the second respondent. In a significant and meaningful way, he provided care, shelter, maintenance, education and upbringing of the second respondent, consistent with principles discussed in Canute and the other authorities. It was not just financial support. The evidence establishes that he stood “in loco parentis” to the second respondent. This would justify a finding of at least part dependency.
In the circumstances, I am satisfied that the second respondent was partly dependent on the deceased at the time of his death.
When one considers the totality of the evidence from the applicant, Kate Taylor, Cathy Shanahan, Jason Walsh, Elira Byrne and Shayna Hasnip that there seems little doubt that all of the four children were both financially and emotionally dependent on the deceased. The deceased treated all of the children as his own and he provided for them financially, emotionally and in other ways for them.
Accordingly, I am satisfied that the third, fourth and fifth respondents were wholly dependent and the second respondent was partly dependent on the deceased at the time of his death.
The sixth respondent relied on child support payments from the deceased in respect of their three children and she was also in receipt of Centrelink payments. She was unable to work because she needed to be at home to care for them. It was only when Bonnie started pre-school that she was able to go back to part time work for two days a week.
The sixth respondent received $17,000 for spousal maintenance, and I understand that that the outstanding $8,000 forms part of the debts owed by the deceased’s estate. She has received no payments since the deceased’s death. She has recently entered into a defacto relationship.
I am satisfied that the sixth respondent was partly dependent on the deceased at the time of his death. She was receiving child support payments that she used to provide for her three children, so there was some financial dependency even though the marriage had broken down.
According to the applicant, the deceased’s parents and his brother were not dependent on him. There is no evidence to the contrary. Therefore, I am satisfied that there were no other persons wholly or partly dependent on the deceased at the date of his death.
Apportionment
In order to apportion the lump sum, it is necessary to review all of the relevant facts disclosed in the evidence. In Wratten v Kirkpatrick,[15] Egan A-CCJ stated:
“The exercise of power to determine the correct amount to be apportioned to each dependant requires an examination of all relevant facts including the extent of past dependence, the anticipated future dependence, the ages of the dependants, their health, special needs, lifestyle, etc.”[16]
[15] (1996) 15 NSWCCR 32 (Wratten).
[16] Wratten, [34].
Each case requires an examination of the individual facts as no two matters are identical. The applicant would be entitled to a greater proportion of the lump sum having regard to her past dependency, her age, current employment and needs. This of course also needs to be weighed up with the dependency of each of the four children and that of the sixth respondent.
It is always difficult to assess the future expectations of minor children, as any assessment is highly speculative. Three of the children currently have special needs, and the youngest might have issues in the future. They would have somewhat different expectations based on their ages and special needs.
Given my determination regarding the dependency of the second respondent, the applicant is entitled to receive weekly compensation for the second respondent’s upkeep pursuant to s 25(1)(b) of the 1987 Act and these payments can continue until he turns 21 years of age.
Similarly, the sixth respondent will be entitled to weekly compensation for her three children. These payments would hardly cover the cost of their care. She would have had an expectation of ongoing support from the deceased but for his death. She cared for three children and only secured part time employment when Bonnie started pre-school.
Each of the children would have had an expectation of support from the deceased throughout their school years and whilst they were undertaking any tertiary education. Therefore, I am satisfied that the deceased would have continued to support the children whilst they were at school and until they were each 21 years old, by which time any tertiary studies should have concluded.
Doing as best I can on the little information before me, I consider that each child would have reasonably expected an allowance of, say, $200 per week, or about $28 per day.
The parties have made different submissions regarding apportionment which seem to take into account their different levels of support and expectations based on their differing ages and health issues. However, I do not agree with their views on apportionment.
The second respondent would have a significant expectation given his age and the health issues that he has. He is only 11 years old and he would have had an expectation of ongoing support for 10 years at $200 per week. This amounts to $104,000 (11.67%).
Holly is now 10 years old, so her expectation would be similar to those of William. She too is experiencing some health problems that might require ongoing medical treatment. Her expectation would be for another 11 years at $200 per week. This amounts to $114,400 (12.84%).
Courtney is now 8 years old and has some health issues. Her expectation would exceed those of the second and third respondents. Her expectation would be for another 13 years at $200 per week. This amounts to approximately $135,200 (15.17%).
Bonnie is now only 5 years old. Her expectation would be for another 16 years at $200 per week. This amounts to approximately $166,400 (18.67%). She is still only young, and it must be borne in mind that the value of her entitlement will diminish with inflation over time.
The situation with respect to the sixth respondent is somewhat different. She was receiving child support payments of $541.08 per week and it was agreed that the deceased would make additional payments to cover the private school fees of the children until they had completed primary school. These payments never crystalised.
The evidence is silent as to when the child support payments would cease. Child support is usually payable until a child reaches 18 years of age or when they complete their secondary schooling. There is no hard and fast rule, and payments can continue after the child reaches that age.
There is merit in Ms Young’s submissions regarding the comparison between the level of child support paid by the deceased, and the impact of the adjustment of the weekly compensation moving forward. She submits that the sixth respondent’s entitlement should be modest.
The deceased spent time with his three daughters every second weekend, and this warrants a modest allowance over and above the weekly compensation that she currently receives for her daughters. I do not necessarily agree with Ms Young’s submission that the deceased would have seen his daughters less and less as time passed.
The other dependants have submitted that 5% of the death benefit, or $44,500, would be appropriate. I tend to agree with this apportionment, which is consistent with the reasoning in BFG.
In Slater, late Judge Ferrari WCCJ made a deduction in a widow’s death benefit entitlement because of the potential of remarriage and support from a new spouse. I am mindful that this decision was delivered about 60 years ago and the death benefit at that stage amounted to only 4,000 pounds. I see no reason for applying such a deduction in the current matter with respect to the applicant and sixth respondent.
In the exercise of my discretion and weighing up her expectations with all of the dependants, the remaining balance of $326,600 (36.65%) will be payable to the applicant. This figure exceeds that of the other dependents and takes into account the applicant’s current needs, the maintenance payments that she is receiving from Mr Machado and her future expectations.
If I had otherwise determined that the second respondent was not partly dependent on the deceased at the time of his death, the amount payable to him would have been awarded to the applicant and would not have benefitted the other respondents. Their entitlement was not contingent on the amount of compensation paid to the second respondent.
Therefore the apportionment will be as follows:
(a) Bridie Shanahan – $326,600;
(b) William Machado – $104,000;
(c) Bonnie Walsh – $166,400;
(d) Courtney Walsh – $135,200
(e) Holly Walsh – $114,400, and
(f) Fleur Walsh – $44,500.
Interest
The parties have reached agreement as to the rate and the period that interest will be payable in accordance with s 109 of the 1998 Act and Rule 36.7(1) of the Uniform Civil Procedure Rules 2005 at the rate of 6.1% from 3 November 2023 to 7 November 2023 and 6.35% from 7 November 2023 to date as follows:
(a) Bridie Shanahan – 3 November 2023 to date;
(b) William Machado – 3 November 2023 to date;
(c) Bonnie Walsh – 15 May 2024 (date of Reply) to date;
(d) Courtney Walsh – 15 May 2024 (date of Reply) to date;
(e) Holly Walsh – 15 May 2024 (date of Reply) to date, and
(f) Fleur Walsh – 7 June 2024 (date of Reply) to date.
The power to award interest is discretionary[17] and can apply to some or all of the compensation payable for the entire period from the date of the claim to the date of the order or for a lesser period. A claim is made when sufficient information is served to enable a decision to be made to accept or dispute liability.[18]
[17] Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd and Burrangong Pet Foods Pty Ltd [2005] NSWWCCPD 9 (Haidary).
[18] Cameron v StateCover Mutual Ltd [2015] NSWWCC 325.
The rate of interest is also a discretionary matter. However, whilst the discretion is wide, one must have regard to the facts of the case.[19]
[19] Brambles Australia Ltd t/as Gardner Perrott Industrial Services v Hamilton & Monier Ltd [2206] NSWWCCPD 169, [43] (Brambles), and Haidary, at [10], [15].
I am mindful that the purpose of ordering interest is to compensate a worker for the loss of his or her income, or in this case, the applicant and the respondents, for not being able to access the significant death benefit. On the other hand, an order for interest is not intended as a penalty against the employer or insurer.
Given that there was a small change in the rate on 7 November 2023 from 6.1% to 6.35%, in the exercise of my discretion I propose to order interest at the rate of 6.35% for the periods identified above until the date of this determination, resulting in the following entitlement:
(a) Bridie Shanahan – $326,600 plus $18,750.42 (6.35% from 3 November 2023 to 27 September 2024 – 330 days) = $345,350.42;
(b) William Machado – $104,000 plus $5,970.74 (6.35% from 3 November 2023 to 27 September 2024 – 330 days) = $109,970.72;
(c) Bonnie Walsh – $166,400 plus $4,226.56 (6.35% from 5 May 2024 to 27 September 2024 –146 days) = $170,626.56;
(d) Courtney Walsh – $135,200 plus $3,198.87 (6.35% from 15 May 2024 to 27 September 2024 –136 days) = $138,398.87;
(e) Holly Walsh – $114,400 plus $2,706.74 (6.35% from 15 May 2024 to 27 September 2024 –136 days) = $117,106.74, and
(f) Fleur Walsh – $44,500 plus $874.82 (6.35 % from 7 June 2024 to 27 September 2024 – 113 days) = $45,374.82.
Management Fee
Section 25(1A) of the 1987 Act provides that where a lump sum death benefit is paid to the NSW Trustee for the benefit of a dependant in accordance with s 85 of the 1987 Act, the employer must pay additional compensation fees for management of the funds by the NSW Trustee as prescribed by the regulations. Clause 177 of the 2016 Regulation contains the prescribed formula for the calculation.
The SIRA website contains a lump sum benefit additional fees calculator which simplifies the calculation. According to the calculator, the additional fees payable by the first respondent to the NSW Trustee and Guardian are as follows:
(a) William Machado – $20,171.86;
(b) Bonnie Walsh – $44,964.95;
(c) Courtney Walsh – $30,877.20, and
(d) Holly Walsh – $23,163.83.
I propose to make orders in accordance with the above calculations.
Weekly compensation
Given that I have determined that the second respondent was dependent on the deceased at the date of his death, the first respondent will be liable to pay weekly compensation to the applicant from 30 August 2023 to date and continuing pursuant to ss 25(1)(b) and 31(1)(a) of the 1987 Act.
FINDINGS
The deceased worker, Shawn Walsh, died on 30 August 2023 as a result of injury sustained arising out of or in the course of his employment with the first respondent.
Bridie Shanahan was partly dependent for support upon the deceased at the date of death.
William Machado was partly dependent for support upon the deceased at the date of death.
Bonnie Walsh was wholly dependent for support upon the deceased at the date of death.
Courtney Walsh was wholly dependent for support upon the deceased at the date of death.
Holly Walsh was wholly dependent for support upon the deceased at the date of death.
Fleur Frances Walsh was partly dependent for support upon the deceased at the date of death.
The deceased had no other persons dependent on him.
The first respondent is liable for the payment of lump sum compensation, weekly compensation, interest and a management fee.
ORDERS
The first respondent is to pay the applicant lump sum compensation of $345,350.42 pursuant to ss 25(1)(a) and 85A(1)(a) of the 1987 Act and s 109 of the 1998 Act.
The first respondent is to pay the sixth respondent lump sum compensation of $45,374.82 pursuant to ss 25(1)(a) and 85A(1)(a) of the 1987 Act and s 109 of the 1998 Act.
The first respondent to pay the applicant $159.90 per week as adjusted to date and continuing in respect of the second respondent pursuant to ss 25(1)(b) and 31(1)(a) of the 1987 Act.
The first respondent to pay the following amounts to the New South Wales Trustee and Guardian pursuant to ss 25(1A) and 85(1)(c) of the 1987 Act, s 109 of the 1998 Act and cl 177 of the 2016 Regulation to hold on trust until each of the second, third, fourth and fifth attain the age of 18 years:
(a) William Machado – $130,142.58;
(b) Bonnie Walsh – $215,591.51;
(c) Courtney Walsh – $169,276.07, and
(d) Holly Walsh – $140,270.57.
Liberty to the parties to apply with respect to the calculations of interest and the management fee by close of business on 4 October 2024.
- AGLC
- Shanahan v SHCB Constructions Pty Ltd [2024] NSWPIC 547
- Case
- [2024] NSWPIC 547
- Decision Date
CaseChat Overview and Summary
The legal issues before the court encompassed whether the deceased stood in loco parentis to the second respondent, the determination of dependency, the apportionment of the death benefit, and the calculation of interest and management fees. The court needed to evaluate the precedents and statutory provisions applicable to workers' compensation claims, particularly focusing on the dependency criteria under the Workers' Compensation Act.
The tribunal meticulously examined relevant case law, including Canute v W A Pickles (NSW) Pty Ltd ATF The William Alan Pickles Family Trust & Ors, Rose-Barnett & Ors by their representative Sharyn Gaye Rose v T A Edison Pty Ltd, TNT Group 4 Pty Limited v Halioris, Kaur v Thales Underwater Systems Pty Ltd, Wratten v Kirkpatrick & Ors, BFG v Polyfoam (Sydney) Pty Ltd & Ors, and Slater v Newman Bros (Sawmill) Pty Ltd. The court determined that the deceased had indeed stood in loco parentis to the second respondent, fulfilling the dependency requirement. The tribunal ordered a proportionate distribution of the death benefit, along with interest and a management fee, as per the statutory provisions and precedents.
In summary, the tribunal ruled in favour of the applicant, mandating the respondent to provide the death benefit, interest, and management fees as determined by the court. The decision underscored the importance of dependency criteria in workers' compensation claims and the application of relevant legal precedents in such disputes.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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