2.2.2: Eligible applicant - carer applications

Context

A person who is an eligible carer can apply for a child support assessment from a parent of a child.

Legislative references

Sections 5, 7B, 25, 26 and 26A Child Support (Assessment) Act 1989

Explanation

A person can apply to CSA for a child support assessment for a child if they are:

• an eligible carer, and
• seeking child support from a person who is:
  • a parent of the child, and
  • a resident of Australia (or habitually resident in a reciprocating jurisdiction (See chapter 1.5) on the day the application is made, and
• not living on a genuine domestic basis with the person from whom they seek child support.

An eligible carer will generally not be sharing a residence with the person from whom they seek child support. However, if parents are legally separated, but still reside together in the home they shared, they are not considered to be living together on a genuine domestic basis. Whether parents are separated, or are still living together on a genuine domestic basis, is a matter of fact and degree in each case. However, separation usually involves 3 elements:

• intention to end the relationship;
• action upon that intention; and
• communication of the intention to the other party.

A person who is caring for a child who is in their care under a child welfare law cannot apply for child support unless they are the child's parent or relative (section 26A). Also see eligible child.

Example

If 2 or more people care for the child together in a residence that they share (i.e. jointly), only one of the joint carers can apply. If one of the joint carers is a parent of a child, they can apply for a child support assessment, or another joint carer can apply on their behalf (section 26). If a joint carer makes an application on behalf of a parent CSA will confirm the parent consents to them making the application. The payee will be the parent, not their partner.

Example

Eligible carer

An eligible carer is a person who (section 7B):

• is the sole or principal provider of ongoing daily care of a child, or
• has major contact with a child, or
• shares ongoing daily care of a child, or
• has substantial contact with a child.

Example

An application from a non-parent carer

A person is not an eligible carer if:

• they are not a parent or legal guardian of a child (a non-parent), and
• the child's parent or legal guardian has said that they do not consent to the person providing or sharing care of the child, or having contact.

However, the person will be an eligible carer if it would be unreasonable for a parent or legal guardian of the child to provide or share that care or to have that contact (section 7B(2)).

It is unreasonable for a parent or guardian to provide or share that care or have contact if CSA is satisfied that:

• there has been extreme family breakdown, or
• there is a serious risk to the child's physical or mental wellbeing from violence or sexual abuse in the home of the parent or legal guardian concerned (section 7B(3)).

CSA will be satisfied that a carer meets the definition of an eligible carer once they establish that they provide care for the child unless a parent or legal guardian raises an issue with the care arrangements.

Where the child was previously subject to another child support assessment in favour of a parent, CSA will contact that parent to confirm the change in care. If the parent says that they do not consent to the applicant providing care for the child CSA will investigate to establish whether the applicant is eligible to apply for an assessment.

The terms of the legislation imply that if the parent does not agree to the care arrangements they must be prepared to provide care for the child. Some reasonable indication of an alternative living arrangement for the child is required.

CSA will be satisfied that there has been an extreme family breakdown if:

• the child has never lived with the parent, or
• there has been a substantial period since the parent has provided care for the child.

However, CSA will not be satisfied that there has been an extreme family breakdown if the parent had frequent and regular contact over a substantial part of the period when another person provided care for the child.

If a court has ordered that the child reside with the non-parent carer CSA will not look beyond the order. If a court order says that the child will reside with one of its parents and that parent tells CSA they do not consent to the child living with the non-parent carer, CSA will presume that the non-parent carer is not an eligible carer unless they can provide evidence about the risk to the child if returned to the parent's home.

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Version 1.3

Issued 18 August 2003

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