2.1.1.85 Formal & informal care of an FTB child
Summary
This topic covers the payment of FTB in both formal foster care and other informal care situations using the following definitions:
- Formal foster care involves a change in legal responsibility, usually to a state child welfare authority.
- Informal care involves private voluntary arrangements such as those with grandparents, other carers who are family relations or family friends.
Explanations of these care arrangements are set out below.
Note: These guidelines should be appropriate for the majority of foster and non-parent care cases. However, it is important that the full circumstances relating to each case are taken into account when making a determination for payment of FTB. In some situations, consideration should be given to the involvement of a Centrelink social worker.
Formal care
Most formal care is the responsibility of state and territory jurisdictions through their child protection agencies. Formal foster carers in the state/territory care and protection system, ACOs (1.1.A.80), as well as grandparents and non-parent carers, may be paid an allowance and supplementary payments, or be funded by the relevant authority. Other formal carers may have a parenting order made under family law, but these carers will usually be outside the state system, for example, the Federal Circuit and Family Court of Australia orders the grandparent to have care of the child.
Formal care is where the change of care is legally authorised and involves a change in legal responsibility (whether day-to-day and/or long term). It needs to be supported by documentation from a state/territory child welfare authority or a court from another jurisdiction, for example, family law court from the federal jurisdiction. These documents from the state authority or the court order will determine who has the legal right to care for the child.
In formal care situations, FTB is payable from the date the child enters foster care, the care of an ACO or the care of a non-parent carer, for the relevant dates provided in the supporting documentation. If the child moves from one formal carer to another (for example, another foster carer), the FTB will follow the child and be paid to the new carer from that point in time.
Documentation to Centrelink may include:
- an original letter on the letterhead of the state child welfare authority providing details on the child's placement with the carer and the relevant approved dates of placement, or
- the relevant court orders if available.
Note: A state or territory children's court order may not name the foster carer, and in this case a separate letter from the child welfare authority linking the carer with the child may still be needed.
Example: Simon is removed from the care of their parent, Denise, by a state authority and is placed in temporary foster care with Tracey. The next day, the Children's Court orders that Simon remain in the care (legal responsibility) of the state welfare authority for a temporary period. Tracey provides a letter from the authority stating Simon is to remain in their care for 2 months. Tracey may therefore be eligible for FTB from the date the court makes its orders.
Example: Brianna, aged 15, entered the care of a state welfare department on 1 October. On 3 October, the Children's Court made the following orders:
- that legal responsibility for Brianna be allocated to the Minister until the age of 18 years
- that the Minister be responsible for residence, financial and contact arrangements, and
- that Brianna's parent be responsible for religion and have shared responsibility with the Minister for medical, educational and training arrangements.
Based on the court orders, the Minister gained legal responsibility for Brianna and Brianna's care is delegated to a foster carer. FTB would be payable to the foster carer who is providing care for Brianna from 3 October. If at a later date Brianna moves into the care of another foster carer, FTB may be payable to the second foster carer from the date care changes if they meet eligibility requirements. Therefore Brianna's parent has no eligibility for FTB.
Example: On 16 November, a child protection worker removed Ava from their parents' care. Two days later, the Children's Court made an interim order that Ava be placed in the care of their maternal grandmother for a period of 6 months. In this period, Ava's parents assist with the costs of Ava's medication, clothing and pocket money to maintain a positive relationship with their daughter. Although Ava's parents assist with these costs, based on the orders made by the court, Ava's grandmother has legal responsibility for her day-to-day care, welfare and development. Therefore Ava's grandmother may be eligible to receive FTB from 18 November.
Example: A state department removes a child from their parent in an emergency and makes an application to the Children's Court for a care order. After the application for the care order is served on the child's parents, the Registrar of the Court arranges a preliminary conference of the parties. At the preliminary conference, the parents and the department agree in principle to the making of an interim order where the child concerned is to be placed back with the parents under 'conditions' pending the return of the matter before the court. The interim order with respect to care is then made by the Children's Court magistrate in the terms agreed to by the parties. FTB will continue to be paid to the parents during this process.
Example: The Children's Division of the Magistrate's Court makes an order for Shayla, aged 10 years, to be placed in the care of a state department. Shayla is placed with Fiona, a foster carer, but some time later the placement breaks down. A change of care occurs, and Shayla goes to live with another departmental foster carer, Kate. Both foster carers (Fiona and Kate) may be entitled to receive FTB for the relevant period that they had/have Shayla in their care.
Example: On 3 October, Shane is arrested for shoplifting. On 4 October, Shane pleads guilty and is sentenced to 3 weeks in a Juvenile Correction Centre. As an ACO, the Juvenile Correction Centre is eligible for FTB to assist with the costs of Shane's care. During this time, Shane's parents will not have formal or legal care of Shane. As such, they will not be eligible for FTB for the 3 weeks starting 4 October until Shane is released on 24 October, assuming Shane returns to their parent's care.
Informal care
Informal care is a private arrangement between the parent and another party, where there is no change to any form of legal responsibility. Informal carers will usually be grandparents, other relatives or family friends. In informal care situations, who is eligible to receive FTB for a child depends on whether there has been a change of care or a delegation of care.
Delegation of care in informal care situations
Where an individual delegates the care of their child to another individual, FTB is not payable to the other individual. Common examples of delegated care include a child attending child care (either formal child care or care by a relative/friend), attending boarding school or staying with a grandparent, other relative or family friend.
The following circumstances should exist for a care arrangement to be considered a delegation of care:
- The individual should retain overall responsibility for the child, including the ability to make major decisions about the child such as those relating to the child's health and education and the length of time they spend with the other carer.
- The care arrangement should be short term and temporary (rather than open ended or ongoing). There should be a defined end date to the care arrangement. Where there is no documentary evidence that confirms when the care arrangement will end (such as a letter of from an employer, school), the intention of the individual should be considered.
- The individual should be meeting, or at least substantially contributing to, the child's costs. This includes day to day costs (food, accommodation, transport etc.) and long term costs (school fees, clothing, health and dental care).
If the decision-maker cannot establish that delegation of care exists, it is likely that a change of care has occurred.
Example: Kirsten travels interstate to spend the Christmas school holidays with their cousins. Kirsten is away from their parent's care for 5 weeks in total. Kirsten's parent has given them sufficient money to help pay their expenses, and remains involved in any decisions regarding the type of activities Kirsten is allowed to participate in while they are away. They talk on the phone every few days. Kirsten's parent retains overall responsibility for the child including the ability to make major decisions, the care arrangement is short-term and has a definite end date and her parent is meeting their day to day costs. This is considered to be a delegation of care and Kirsten continues to be an FTB child of her parent.
Example: Eva, who is 3 years old, travels interstate with their mother, Anna, to visit their grandparents. After 8 weeks, Anna returns home as their leave from work has ended. Eva continues to stay with their grandparents for a total of 3 months so that they can get to know each other better. Anna has left sufficient money to cover Eva's expenses during Eva's stay with their grandparents. Eva's grandparents care for Eva, including preparing meals, bathing, and supervising and guiding them each day. However, they consult with Anna on any major decisions such as those relating to Eva's health. Anna will return at the end of the 3 month period to bring Eva home. Anna retains overall responsibility for Eva including the ability to make major decisions, the care arrangement can reasonably be considered short-term and has a definite end date and Anna is meeting Eva's day to day and long term costs. This is considered to be a delegation of care and Eva continues to be an FTB child of Anna.
Example: Michael, who is the sole parent of Kyuss, was incarcerated for 6 months. During Michael's incarceration, Kyuss lives with their grandmother. Michael continues to make major decisions relating to Kyuss and made a contribution towards Kyuss' annual educational costs via a lump-sum payment prior to their incarceration. Although Michael retains some responsibility for Kyuss and made a contribution towards the child's long term costs, Kyuss' grandmother is substantially meeting the child's day to day costs and the care arrangement could not reasonably be considered short-term. This is not considered to be a delegation of care and Kyuss is an FTB child of their grandmother during Michael's incarceration.
Example: Zadie, who is 14 years old, has behavioural difficulties, and their parents are unable to provide adequate support for Zadie as they are in the process of establishing a small business, which requires long hours away from home. Zadie's grandparents agree that Zadie will live with them until Zadie's behaviour is under control and their parent's business is able to run independently. Although Zadie's parents continue to make major decisions about Zadie and are substantially contributing to Zadie's day to day and long term costs, the care arrangement is open ended and does not have a definite end date. This is not considered to be a delegation of care and Zadie is an FTB child of their grandparents while their parents' circumstances stabilise.
Change of care
If it cannot be established that delegation of care exists, it is likely that a change of care has occurred. Whether FTB can be paid to the new carer will depend on whether the care is of a temporary and short term or an ongoing nature.
Temporary & short term care
Where possible, FTB should be paid to the individual who has the care of a child. However, in some situations, FTB may continue to be paid to a parent who does not have the care of a child. For example, if the change of care is temporary, short term, and informal and the intention is that the child will return to the parent within a short period, the parent will continue to be paid FTB. However in all but the most extenuating circumstances, the total temporary and short-term absence for FTB purposes, should not exceed 4 weeks. After this period, the actual carer should receive the FTB, provided they are eligible and entitled. The continued payment of FTB beyond a 4-week absence to the parent could only occur if the parent's involvement in the child's care increased to a sufficient degree.
If a state agency facilitates the placement of a child but does not gain legal responsibility, it is considered informal care. This occurs as parents are assisted to have respite or place their child in short-term care, and may include placements in the care of grandparents or relatives.
Example: Belinda has 2 young children. One of the children has a severe disability. Respite care facilitated by the state government has been arranged for that child for a period of 2 weeks so that Belinda can have a break from their intensive caring responsibilities. Belinda still has legal responsibility for the children, so this is an informal care arrangement. As the arrangement is short term and temporary and Belinda continues to be responsible for major decisions relating to the children, Belinda continues to be eligible for FTB for both children.
Example: Terri is a single parent of her 12 year old child, Jack. Terri is being hospitalised and will not be able to care for Jack. Terri makes arrangements for Jack to be cared for by a friend of the family for a period of 3 weeks while they receive treatment for their illness. As the arrangement is short term and temporary and Terri continues to be responsible for major decisions relating to Jack, Terri continues to be eligible for FTB for Jack.
Example: Janet has a 4-week old baby, Louise. Janet suffers from post-natal depression and has a major depressive episode. Louise is considered to be at risk however the state child welfare department is not taking any court action as Janet's parent has undertaken to care for Louise for a period of 4 weeks while Janet receives treatment. As it is not a care and protection order, this is an informal care arrangement. As the arrangement is short term and temporary, and is less than 4 weeks, Janet continues to be eligible for FTB for Louise.
There may be situations where the care is temporary and short term or the period of care is unknown and the parent does not want to be paid FTB. In this case the new carer will be eligible for FTB from the date the child enters their care provided the relevant eligibility criteria are met.
Policy reference: FA Guide 2.1.1.60 Change of care of an FTB child
Ongoing care
When it is clear from the outset that a child will be in ongoing care, then the carer will be eligible for FTB from the date the child enters their care. When care has been on a temporary and short-term basis and it subsequently becomes ongoing, a change of care applies at the point it becomes ongoing and FTB may be payable.
Example: Sean is a single parent caring for their 14 year old child, Zack. Sean has had to go into rehabilitation for 3 months. While Sean is in rehabilitation, it is agreed within the family that Zack will be cared for by their aunt, including meeting the costs relating to Zack's care and making major decisions about their wellbeing without input from Sean. In this case, Zack's aunt may be eligible for FTB from the date Zack enters her care.
Example: Following an abusive relationship, Sharon is unable to care for their 3 children and agrees to leave the children in the care of their paternal grandparents. Although no timeframe has been set, it is considered an ongoing arrangement. The grandparents may become eligible for FTB from the date the children enter their care.
Example: Nancy lives in the same house as their daughter, Kylie, who is dependent on drugs and is unable to care for their 4 children. The children are being cared for by Nancy who makes a claim for FTB, as Kylie is unable to care for the children due to their drug dependence. Nancy may be eligible to receive FTB. It is likely that there will need to be social work involvement in this case to confirm the circumstances or other independent evidence, such as medical evidence regarding Kylie's capacity as a drug user to care for the children. In most situations, except where a parent can be shown to have lost their capacity to care for the child or exercise legal responsibility for the child, they would continue to be entitled to receive FTB.
Example: On 20 January, Thomas is placed with their grandmother for a period of 3 weeks while their parent has a short break. On 10 February, Thomas's parent feels they are still unable to care for Thomas and Thomas remains with their grandmother for a further 6 months. Although the intention for Thomas to return to their parent remains unchanged, their grandmother may be eligible to receive FTB from 10 February.
Where the arrangements for the care of the child were to be ongoing but there is a change in circumstances where the child is returned to the parent after a short period of time, the parent is paid from the date the child returns to their care.
Example: On 4 July, Josh goes to live with their aunt and uncle while their parent receives counselling and support. It was intended that Josh would stay for a period of 4 months and that the aunt and uncle would meet their costs during this period. After 3 weeks, Josh returns to the care of their parent. FTB may be paid to the aunt or uncle from 4 July for 3 weeks. The FTB is then paid to Josh's parent once they regain care of Josh.
14-week qualification period
FTB may continue to be paid to an individual after that individual loses care of an FTB child. The maximum qualification period during which FTB can continue to be paid is 14 weeks.
The 14-week qualification period is only intended to apply in circumstances where children are removed from their legally responsible parents' care without any legal authority, for example, abduction, the child is missing or the child is absent without the parent's consent. The intention is to allow FTB to be paid for a further 14 weeks despite the fact that the parent may not have actual 'care' of the child concerned, provided the parent is taking reasonable steps to regain care of the child.
Note: Where there is a care arrangement (1.1.C.05) in place and the parent is taking reasonable action to have the care arrangement complied with, an interim period (1.1.I.105) may apply (2.1.1.70).
The 14-week qualification period is not intended to apply in cases where the child is taken by state or territory welfare authorities, as removal by the state under relevant child protection legislation has legal authority.
Example: Gareth is the sole parent of 2 children, Nicholas and James. The state welfare authority is notified of a possible care and protection concern by a neighbour, and the authority investigates and obtains a court order placing Nicholas and James into full-time ongoing care with a foster carer. Gareth objects to the children being taken away and complains to the Department and takes legal action to have the children returned. In these circumstances, FTB cannot be paid to Gareth as they have lost legal responsibility for the children and the foster carer would qualify for payment from the date the order was put into place.
Act reference: FAAct section 23 Effect of FTB child ceasing to be in individual's care without consent
Policy reference: FA Guide 2.1.1.70 Disputed care arrangements
Shared care of a foster child
Where there is an established pattern of care, both the foster carer and the original carer can qualify for FTB, even if another individual or organisation has the legal responsibility for the child. Therefore, if the care of the child is being shared between the foster carer and another individual (usually the parent), the normal shared care rules can be applied. A minimum of 35% care must be established for each carer during the care period (1.1.C.100).