Claiming payments for children entrusted to care as part of the process of adoption or surrogacy 007-07010010

Example

Description

1

Overseas surrogacy arrangement

Claim for Family Tax Benefit (FTB) and Parental Leave Pay (PPL)

Joanne and Phil are claiming FTB and PPL for their child born via a surrogacy arrangement. Joanne lodges the claim on 20 December for child Liam.

Joanne and Phil travelled overseas and commissioned an overseas surrogacy arrangement. As a result of that agreement/contract, a surrogate became pregnant. Child Liam was born 12 November to the overseas surrogate. Joanne and partner Phil are to become Liam's legal parents. Phil is also Liam’s biological parent. On 10 November both Joanne and Phil travelled overseas, to have Liam entrusted into their care immediately after the birth. Joanne, Phil and child Liam returned to Australia on 15 December once Liam had an Australia passport.

To meet the PPL surrogacy eligibility rules:

• the surrogacy arrangement must have started before the child’s conception
• legal surrogacy documentation about the surrogacy must have been provided with the claim, and
• the child must have entered into Joanne and Phil’s care back in Australia

Liam was born overseas to a non-Australian resident, entrusted to Joanne's care from birth so Joanne is eligible for FTB from this date.

If Joanne is:

• not eligible for PPL and
• found eligible for FTB Part A for Liam, Joanne is assessed under the entrustment to care criteria to determine eligibility to receive NBS/NBU

Note: Joanne will need to provide the full surrogacy agreement to verify the legal arrangement/care.

2

Couple claiming PPL for separate surrogate children

On 20 September, Graeme and Lindsay each lodge claims for PPL for their respective children under the surrogacy rules.

Graeme and Lindsay, a couple, both individually contracted overseas surrogates to carry their children.

Graeme contracted Preah and Lindsay contracted Sanjam as surrogates to carry their respective biological child. Each party completed a surrogacy agreement confirming Graeme and Lindsay are to be the legal parents of the children immediately after the births.

On 15 July both babies are born and Graeme and Lindsay take on primary care as outlined in the surrogacy agreements. On 29 August, once the children's passports are finalised, the family return to Australia.

In this situation, each member of the couple may be eligible for PPL, providing they meet all other eligibility criteria. This is because both Graeme and Lindsay are the gaining parents of their respective children, and the children are not part of a multiple birth.

Note: Graeme and Lindsay will each need to provide the surrogacy agreements to verify:

• the children were entrusted into their care, and
• the surrogates have relinquished care

3

Couple claiming Enhanced PPL - overseas surrogacy

On 21 February, Paula lodges a claim for PPL for a child coming into care as a part of an overseas surrogacy agreement.

Louise, the biological mother of the child is in a relationship with Paula.

Paula and Louise entered into a surrogacy agreement with surrogate Kelly. Louise will be the biological and legal parent of the child immediately following the birth.

On 2 April, Kelly delivered the baby. Kelly relinquished care of the baby to Louise and Paula immediately. On 29 May Louise, Paula and the baby, now named Sam, returned to Australia once Sam's passport was finalised.

As Paula is a gaining parent in the surrogacy agreement, Paula can claim PPL as a PPL claimant in exceptional circumstances (surrogacy). As Paula is the initial gaining parent to claim PPL no approval is required from Louise.

The References page contains a link to the Paid Parental Leave Rules 2021 Part 3, Division 2, Section 27 Exceptional circumstances for primary claimants- surrogacy arrangement.

4

Couple claiming Flexible PPL- overseas surrogacy

On 18 July 2022, Paul lodges a claim for PPL for a child coming into care as a part of an overseas surrogacy agreement.

Jack, the biological father of the child is in a relationship with Paul.

Jack entered into a surrogacy agreement with surrogate Hansa. Jack will be the biological and legal parent of the child immediately following the birth.

On 25 August 2022, Hansa delivered the baby. Hansa relinquishes care of the baby to Jack and Paul immediately. On 29 September 2022 Jack, Paul and the baby, now named Olivia, returned to Australia once Olivia's passport was finalised.

Although Paul is a gaining parent in the surrogacy agreement, it does not mean Paul cannot claim PPL as a primary claimant. If Paul is Olivia's initial primary carer and meets all eligibility criteria, PPL may be payable if:

• Paul is expecting to have care of Olivia for at least 26 weeks, and
• it is in the interest of the child for Paul to provide care

The References page contains a link to the Paid Parental Leave Rules 2021 Part 3, Division 2, Section 27 Exceptional circumstances for primary claimants- surrogacy arrangement.

5

Local (in Australia) surrogacy arrangement

Claiming PPL for surrogate child

Sarah and Mike have a surrogacy agreement with Sarah's sibling, Anna, to be a surrogate for them. Both Sarah and Mike are the biological parents of the child. Anna is listed as the birth mother on the birth certificate and Mike is listed as the father.

As part of the surrogacy agreement Anna will have care of the child for two months after the birth. This is for breast-feeding before being permanently entrusted to the care of Sarah and Mike.

On 30 June 2023, Anna gives birth to baby Jane.

On 15 July 2023:

Sarah and Mike both submit an online early claim for PPL.

As outlined in the surrogacy agreement, on 30 August 2023, Anna relinquished care of Jane to Sarah and Mike. Sarah and Mike contact the agency to advise Jane is now in their care and confirm that Anna has relinquished care.

In this situation, Sarah and Mike could receive PPL if all other eligibility requirements are met.

Note: Sarah or Mike needs to:

• provide the surrogacy arrangement to verify details, and
• confirm Anna has relinquished care of Jane

Anna (the surrogate) may also be eligible for PPL. See Claiming payments for children leaving care as part of the process of adoption, surrogacy arrangement, or a child removed by state/territory child protection agency.

6

Couple claiming PPL for surrogate child

On 22 October, Steven submits an online claim for PPL. Matthew also submits a claim for PPL the same day.

Steven and Matthew had a surrogacy agreement with their friend Jenny to carry a child for them. Steven is a biological parent of the child and will be listed as the child's father on the Australian birth certificate.

The surrogacy agreement confirms that Steven and Matthew will have legal care and responsibility immediately after the birth.

On 16 September, Jenny gives birth and the child is immediately entrusted to Steven and Matthew's care.

In this situation, Steven could receive PPL as the gaining parent in a surrogacy arrangement (GPS) and Matthew could claim PPL as the subsequent gaining parent in a surrogacy arrangement (GPS, if all other eligibility requirements are met.

Jenny (the surrogate) may also be eligible for PPL. See Claiming payments for children leaving care as part of the process of adoption, surrogacy arrangement, or a child removed by state/territory child protection agency.

Note: Steven or Matthew will need to provide the surrogacy agreement to verify the details.

7

PPL payable to birth mother and gaining parent for the same child

Kelly gives birth to a child on 15 August 2024. She relinquishes care of the child on the same day as part of a surrogacy arrangement. Kelly lodges an effective PPL claim on 30 August 2024 and is assessed as eligible for PPL.

Kelly starts her continuous PPL period on 15 August 2024 and receives the maximum entitlement of PPL days within 22 weeks of Liam’s birth.

Rolo, the gaining parent through the surrogacy arrangement lodges a claim for PPL for the same child on 1 September 2024. Rolo provides all of the required evidence verifying the child entered their care on 15 August as part of a surrogacy arrangement.

Rolo is assessed as eligible to PPL.

Rolo starts their continuous PPL period on 1 December 2024.

Even though Kelly has already received the maximum entitlement of PPL days for the child, Rolo is also eligible to the maximum entitlement of PPL days for the same child.

8

Overseas adoptions

Grandchildren adopted from overseas

Elena legally adopted two grandchildren that were living in Samoa. The adoption process was finalised in 2023. Elena's grandchildren remained in Samoa with their biological parents until their Australian passports were finalised and air flights could be paid.

On 20 February 2024, Elena travelled to Samoa to have the children entrusted into care as part of the process of adoption.

On 15 March 2024, Elena lodges a claim for PPL and FTB.

Although finalised in 2023, February 2024 is when the children were entrusted to Elena's care for the purpose of adoption. Elena may be eligible for FTB from 20 February 2024 and for PPL if all other eligibility requirements are met.

Timing of payments for a child adopted from overseas

On 15 July, Liz and Oscar travel to Kenya to start the adoption process for Pili. Pili is a 5 year old orphaned child. While the process is being finalised Liz and Oscar returned to Australia.

On 28 February, the adoption process for Pili is complete.

Liz and Oscar return to Kenya to have Pili entrusted to their care as part of the process of adoption.

On 3 March, Pili is entrusted by the state or territory child protection agency into Liz and Oscar's care.

On 2 April, Liz, Oscar and Pili return to Australia.

On 1 June, Liz lodges a claim for PPL and FTB. Oscar lodges a claim for PPL on the same day.

If Liz meets eligibility requirements for FTB, it would be payable from 3 March. This is when Pili was entrusted as part of the process of adoption. Although Pili had not entered Australia, eligibility for FTB can commence because Pili was entrusted to the care of permanent Australian residents Liz and Oscar who were only temporarily out of Australia.

If Liz was not eligible for PPL, NBS and NBU would be automatically assessed with the eligibility for FTB Part A. If Liz becomes eligible or elects to change to PPL, any NBS and NBU paid will be a recoverable debt.

Liz and Oscar could receive PPL if they:

• return to Australia with Pili,
• provide the required documentation and
• meet eligibility

For claiming timeframes and to ensure the maximum PPL entitlements can be made, see time limits for claiming the maximum PPL period.

9

Local adoption

Claiming FTB for an adopted child

On 15 April, 6 year old Connor is entrusted into Lilly and Peter's care by an Australian adoption organisation for the purpose of adoption.

Although the adoption has not been finalised for Connor, Lilly and Peter can now lodge a claim for Family Payments. As Lilly has not been working, they do not wish to claim for PPL.

On 9 May, Lilly lodges a claim for FTB.

Lilly is eligible to receive FTB including NBS/NBU for Connor.

10

Indigenous adoptions

Kinship care of newborn child

On 28 May, Vikki lodges a claim for FTB for Vikki's sibling's baby, Camira, who is one week old.

Camira entered Vikki and Russell's care permanently on 27 May.

Camira's birth parents are caring for five other children. There is an agreement that Camira would live permanently with relatives, Vikki and Russell.

The elders of their community accept this decision.

Based on Indigenous culture, Vikki and Russell are the primary carer of Camira under kinship care.

Provided they meet all other eligibility requirements for FTB, Vikki is eligible for FTB for Camira from 27 May. Vikki may also be eligible for NBS/NBU with the FTB Part A for Camira.

Note: had Vikki claimed PPL, Vikki would not have been eligible, because the agency treats the kinship care arrangement for Camira like a permanent foster care arrangement for PPL.

To be eligible for PPL under the adoption rules, an authorised party must have placed Camira in Vikki's care for the purpose of adoption.

Aboriginal couple legally adopt

Joy and Darel decide they wish to adopt Joy's sibling's child Cobar using an authorised party.

On 24 February, the authorised party entrusts 3 year old Cobar into Joy and Darel's care for the purpose of adoption.

On 25 November, Joy lodges a claim for FTB. Although the adoption is pending finalisation, PPL can still be assessed and granted as Cobar has been placed in their care. To be eligible for PPL under adoption rules, Joy and Darel must claim within 52 weeks of Cobar's entrustment to care for the purpose of adoption. Joy has chosen to claim FTB and not PPL and would be eligible for FTB (including NBS/NBU) for Cobar.

Note: had Joy lodged a claim for PPL, and met all the eligibility requirements, Joy would have been eligible for PPL rather than NBS/NBU.

11

Torres Strait Islander adoption

Kinship care of newborn

On 3 June, Frances lodges a claim for FTB for Frances' sibling's baby, William who is four weeks old.

William entered Frances and John's care permanently on 7 May.

William's parent has two other children in their care. There is an agreement William would live permanently with relatives, Frances and John.

Community and Torres Strait Island custom accept William as an adopted child to Frances and John. William will no longer have any paternal connections to the biological parents.

In keeping with Torres Strait Islander culture, the subject of the care arrangements of William will be taboo. The community will never discuss this.

Frances will be eligible for FTB (including NBS/NBU) for William if they meet all other eligibility requirements.

Note: legally William's birth parents retain parentage/legal custody of William. This remains unless/until William is formally adopted or a court makes a parentage order.

12

Torres Strait Islander adoption - Meriba Omasker Kaziw Kazipa Act

Kira and Marli live in Queensland. Kira was placed in the care of Marli by the Department of Children, Youth Justice and Multicultural Affairs (an authorised party) to raise. Kira’s parents were unable to provide the ongoing care of Kira. The community all recognise Marli and Marli’s partner Nullah as Kira’s parents, in accordance with the Ailan Kastom child rearing practice.

To formalise the permanency of this caring arrangement, Marli applied for and was granted a cultural recognition order (CRO) from the authorised commissioner. This meant Marli had adopted Kira in accordance with the Traditional Child Rearing Practice Act. As the cultural parent named in the cultural recognition order, Marli is the adoptive parent named in a final adoption order that can be considered legally equivalent to adoption under the Adoption Act.

On 1 July 2022, Marli lodges a PPL claim for Child Kira. Marli provides the CRO paperwork with the claims. Marli is eligible for PPL under the adoption rules because an authorised party placed Kira in Marli’s care for the purpose of adoption.

13

Torres Strait Islander permanent care - Meriba Omasker Kaziw Kazipa Act

Iluka, 12 and Kiera, 19 live in Queensland. Iluka’s parents were unable to provide the ongoing care of Iluka. Barnardos (an authorised party), placed Iluka in the care of Kiera to raise. The community recognises Kiera is Iluka’s parent in accordance with the Ailan Kastom child rearing practice even though Kiera has not applied for a Cultural Recognition Order (CRO).

Kiera will not be eligible for PPL for Iluka because Kiera has not applied for a CRO. The agency will assess the care arrangement as permanent care, the equivalent of a formal foster care arrangement and not an adoption.

14

Known adoptions

Claiming PPL for long term foster care child being adopted

On 10 February Tracey and Dennis submit a claim for PPL for Sam. Sam is a foster care child they are now adopting.

Sam is 1 years old and was entrusted to Tracey and Dennis' care as a long term foster care arrangement when Sam was born. During this time, Sam has been solely in their care. Tracey and Dennis decided to adopt Sam legally and commenced the process of adoption.

Sam was already entrusted to Tracey and Dennis' care under a foster care arrangement. This means that an authorised party did not place Sam for the purpose of adoption. As such, Tracey and Dennis are not eligible for PPL for Sam.

Long term step parent adopts step child and claims FTB

Jan has a two year old child, Sophia. Jan commences a relationship with Troy and two years later, Jan and Troy have a child together, Leah.

Troy commences the adoption process for Sophia.

Troy claims FTB for both Leah and Sophia within 52 weeks of starting the process of adoption.

An authorised party did not entrust Sophia to Troy's care for the purpose of adoption. As such, Troy is not eligible for NBS/NBU with FTB Part A for Sophia. Troy would however, be eligible for NBS/NBU for Leah if no one was claiming PPL for Leah.

15

Permanent carer - not eligible for PPL

On 6 April, Alison gave birth to Ebony. The following day Alison's parent Peta contacted child protection due to concerns regarding Alison's ability to care for Ebony.

On 10 April, child protection completed an investigation and assessment regarding the care concerns for Ebony.

The result of this investigation found Ebony's parents were unable to provide an appropriate level of care. Child protection applied for and obtained an interim care order from the court. The court then entrusts Ebony to the child protection agency's care temporarily. This is pending the outcome of an application for a 'permanent care' order. Child protection then place Ebony in the care of Ebony's grandparent Peta.

On 5 August, the court entrusted Ebony to Peta's care under a permanent care order.

Although a court has entrusted Ebony under a 'permanent care' order, Peta is not eligible for PPL. This is because of a decision made by the child protection agency to entrust Ebony to Peta's care. Ebony was not placed in Peta’s care for the purpose of adoption.

16

Permanent carer - eligible for PPL

On 12 November Louise and Samuel, who both have severe physical disabilities welcomed their third child Jett. Louise's parent Jill has care of the couple's older two children and expects to take primary care of Jett.

On 15 November Louise and Samuel voluntarily place Jett in Jill's care. The following day Louise's case worker comes to the hospital to discuss the care arrangements of Jett. They decide that Jett will stay with Jill 'permanently'.

Jill commences an application to the court to have Jett remain in Jill's care under a 'permanent care' order.

On 10 February the court grants 'permanent care' of Jett to Jill's care.

If Jill meets all PPL eligibility, including the PPL work test, Jill would be eligible for PPL for Jett under exceptional circumstances. This is because:

• Jett's birth mother (Louise) and partner (Samuel) are incapable of caring for Jett
• a court has made a permanent care order saying the child is in Jill's care, and
• Jett was not placed in Jill's care as part of a decision by a state/territory child protection agency

17

Adoptive parent receiving child care benefit for child

On the 4 July 2022, child Freddy entered the care of customer Anne. Freddy has been attending an Approved Service Provider since that date.

On the 30 November 2022, Anne adopts child Freddy. A Service Officer creates a new CRN for Freddy and refers the record to the Child Care Subsidy team. They action the updates to any session reports received after 30 November 2022. Once the session reports are corrected Anne receives the new CRN.

Once the updates by the CCS team are complete, email Service Delivery Support Team - Families & Child Care Portfolio. They will then:

• turn the initial child CRN into to a 'PER'son record (if it was a 'CHI'ld record), and
• update the record to ensure it is no longer used