Aafjes v Kearney [1976] HCA 5

High Court of Australia Barwick C.J. McTiernan, Gibbs, Stephen and Mason JJ. Aafjes v Kearney [1976] HCA 5

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1976, March 3 Barwick C.J.

Peta Kearney, a child of a deceased worker who lost his life in the course of his employment, applied to the Workers' Compensation Commission of New South Wales for compensation on the footing that she was wholly dependent on her father for support at the time of his death. The Commission found that she was so dependent and made the appropriate award.

The facts which the Commission accepted were that the deceased and the mother of the child were divorced, the mother having custody and the father an obligation by order of the Supreme Court of New South Wales to pay a sum of $6 per week towards the maintenance of the child. The father made payments under this order but not regularly: indeed, at times, he failed to pay at all. The child's mother remarried. The child lived with her in the home of her stepfather, who made no financial contribution to her maintenance, though he allowed her to lodge in his home. Her mother paid for the child's food, clothing, medical, dental and educational needs out of the money received by her from the father and, as well, herself provided the cutlery, cooking utensils, bedding and suchlike which were used by the child.

After a period in the year prior to his death during which the father had failed to make maintenance payments, an agreement was made between the father and the mother that the father should pay $12 per week through the Children's Court at Manly for maintenance of the child. Apparently the father was performing his obligations at the time of his death.

There were further facts, though for my part they would seem to have small significance. The mother at the date of the death of the father was employed by her husband to do secretarial work at a salary of $20 per week. But, by the time the application for compensation came on for hearing, divorce proceedings between the mother and her husband were on foot.