1.1.E.10 Eligible carer
Definition
An eligible carer is a person who has at least 35% care (1.1.C.10) of the child.
Example: Vikram has 2 children Shashi and Jaya. Shashi lives with Vikram all the time. Jaya stays with Vikram 2 nights a week. Vikram is an eligible carer of Shashi, as Vikram has a care percentage (1.1.C.20) of 100% for Shashi. Vikram is not an eligible carer of Jaya because Vikram has less than shared care (1.1.S.40), as Vikram has a care percentage of 28% (2 nights × 52 weeks ÷ 365 = 28).
A non-parent carer (not a parent (1.1.P.10) or legal guardian) can apply for an assessment (2.1.1) of child support (1.1.C.60) payable by the parents of the child if they have at least shared care (1.1.S.40) of the child. If the parent or legal guardian of the child has not indicated their consent for the person to care for the child, the person is not an eligible carer unless it is unreasonable for the parent or legal guardian to care for the child.
The Registrar will deem it is unreasonable for a parent or guardian to care for the child if:
- 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.
If a parent or legal guardian advises the Registrar that they do not consent to the applicant providing care for the child, Services Australia will investigate to establish whether the applicant satisfies the requirements for an eligible carer.
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.
Extreme family breakdown
The Registrar will be satisfied that there has been an extreme family breakdown if:
- the child has never lived with the parent
- there has been a substantial period since the parent has provided care for the child, or
- other circumstances indicate extreme family breakdown.
However, the Registrar is unlikely to be satisfied that there has been an extreme family breakdown if the parent has had frequent and regular contact with the child over a substantial part of the period when another person provided care for the child.
The Registrar may seek evidence of extreme family breakdown.
Serious risk to child's physical or mental wellbeing
When determining whether there is a serious risk to the child's mental or physical wellbeing as a result of violence or sexual abuse in the home of the parent or legal guardian, the individual circumstances of each case, including any evidence provided, will be considered. Examples of evidence that may assist to substantiate a claim of serious risk of violence/abuse to the child include, but is not limited to, police reports/statements, apprehended violence orders, domestic violence orders, medical reports, or applications for a restraining order.
Effect of a court order about the child's care
If a court has ordered that the child reside with the non-parent carer, Services Australia will generally not look beyond the order. If a court order says that the child will reside with one of their parents and that parent tells the Registrar they do not consent to the child living with the non-parent carer, the Registrar will presume that the non-parent carer is not an eligible carer unless they can provide evidence that there has been extreme family breakdown or that there is a serious risk to the child's physical or mental wellbeing as described above.