Catleugh and Secretary, Department of Social Services Chief Executive Centrelink (Social security) - [2025] ARTA 320

Catleugh and Secretary, Department of Social Services Chief Executive Centrelink (Social security) [2025] ARTA 320 (7 January 2025)

Applicant: Miss Catleugh

Respondents: Secretary, Department of Social Services

Chief Executive Centrelink

Tribunal Number: 2024/SP002729
Tribunal: General Member P Jensen
Place:Brisbane
Date:7 January 2025

Decision:

The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with orders that:

when Miss Catleugh lodged her claim for parental leave pay, she was the adoptive parent of [Child 1] for the purposes of the Paid Parental Leave Act 2010 (the Act); and
Miss Catleugh lodged her claim for parental leave pay within the period specified in section 60 of the Act.

Statement made on 7 January 2025 at 1:03pm

CATCHWORDS

SOCIAL SECURITY – paid parental leave – an adopted child for the purposes of the Act – adoptive parent for the purposes of the Act – claim was lodged within time – decision under review set aside and remitted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 126(1A) of the Paid Parental Leave Act 2010.

Statement of Reasons

On 16 January 2024, Miss Catleugh lodged a claim for parental leave pay in respect of her care of [Child 1] who was born on [date] August 2022. Centrelink decided to reject the claim. An authorised review officer affirmed that decision. Miss Catleugh applied for further review by the Administrative Appeals Tribunal, which was subsequently replaced by the Administrative Review Tribunal. I heard the matter on 20 December 2024. Miss Catleugh gave sworn evidence via a video link. Ms [A], a Case Manager in the Adoptions Program at [Organisation 1], also gave sworn evidence.
On 22 September 2023 the Children’s Court of New South Wales made orders that included allocating all aspects of parental responsibility for [Child 1] to the Minister for Families, Communities and Disability Services.
On 22 December 2023, Ms [B], Program Manager Adoptions at [Organisation 1], wrote the following:
Miss Catleugh is an approved dually authorised carer and prospective adoptive parent for the [Organisation 1]. On 22 December 2023, [Child 1] was placed with Miss Catleugh with a case plan goal of open adoption.
[Child 1] is under the Parental Responsibility of the Minister of the Department of Communities and Justice until the age of 18 years. [Organisation 1] has been delegated Parental Responsibility by the Department for children accepted into the Adoption program.
The Minister had delegated this authority to [Organisation 1] in relation to providing consent in the event of surgery being required for the child and for travel planned outside New South Wales. However, Miss Catleugh will be responsible for all day-to-day decisions relating to [Child 1] whilst in her care.
The relevant law is contained in the Paid Parental Leave Act 2010 (the Act). One of the objects of the Act is to provide financial support to parents caring for children, in order to allow those parents to take time off work to care for the child after the child’s adoption: subparagraph 3A(2)(c)(i) of the Act.
Part 2-4 of the Act, which contains sections 51 to 61, is entitled “Claims for parental leave pay”. Section 54 of the Act relevantly states:
Who can make a PPL claim or a special PPL claim
PPL claim
(1)Only the following people can make a PPL claim for a child:
(a)the child’s birth mother;
(b)an adoptive parent of the child;
…

Section 60 of the Act states:
When to claim
A claim for parental leave pay for a flexible PPL day for a child must be made in the period that:
(a)starts on the day that is 97 days before the expected date of birth of the child; and
(b)ends on the day before:
(i)if, before the child’s first birthday, an effective claim for parental leave pay for the child has been made by a PPL claimant for the child – the child’s second birthday, or
(ii)otherwise – the child’s first birthday.
When Miss Catleugh lodged her claim for parental leave pay she had not adopted [Child 1]. Further, she lodged her claim after [Child 1] had turned one, and there was no evidence to suggest that anyone had lodged an effective claim for parental leave pay before [Child 1] had turned one (and if Centrelink had held such evidence, it was under a general legal obligation to provide that evidence to the Tribunal and Miss Catleugh: sections 23 and 27 of the Administrative Review Tribunal Act 2024).
However, section 275 of the Act relevantly states:
How this Act applies to an adopted child
(1)This Act applies in relation to an adopted child that satisfies the requirements of subsection (2) as if:
(a)a reference to the birth of a child were a reference to the placement of the child; and
(b)a reference to the day the child was born were a reference to the day the child becomes entrusted to the care of a person as mentioned in subsection (2); and
…
(d)a reference to a child’s first birthday were a reference to the first anniversary of the day the child became entrusted to the care of a person as mentioned in subsection (2); and
…
(2)A child satisfies the requirements of this subsection if:
(a)the child becomes, or is to become, entrusted (within the meaning of the Family Assistance Act) to the care of the person; and
(b)it is an authorised party that entrusts, or is to entrust, the child to the care of the person; and
(c)the authorised party does so, or is to do so, as part of the process for the adoption of the child by the person; and
(d)the child is, or will be, aged under 16 on the day the child becomes entrusted to the care of the person.
Section 6 of the Act states that a reference to the Family Assistance Act is a reference to the A New Tax System (Family Assistance) Act 1999, and section 3 of that Act states:
“becomes entrusted”: a child becomes entrusted to the care of an individual at a time if:
(a)any person entrusts the child to the individual’s care; and
(b)as a result, the child is in the individual’s care at that time; and
(c)the child was not in the individual’s care at any earlier time.
It is clear from [Organisation 1] ’s letter dated 22 December 2023 that [Child 1] was entrusted to the care of Miss Catleugh on 22 December 2023. Paragraph 275(2)(a) of the Act is satisfied.
“[A]uthorised party, in relation to the adoption of a child, means a person or agency that, under the law of the State, Territory or foreign country whose courts have jurisdiction in relation to the adoption, is authorised to conduct negotiations or arrangements for the adoption of children”: section 6 of the Act. [Organisation 1] was authorised to conduct arrangements for the adoption of [Child 1] and it entrusted [Child 1] to the care of Miss Catleugh. Paragraph 275(2)(b) of the Act is satisfied.
The authorised review officer concluded:
The letters from [Organisation 1] dated 22 December 2023 and 23 August 2024 state that you are a prospective adoptive parent, and that “[Organisation 1] will attend our internal adoption panel in February 2025 to show satisfaction that [Child 1]’s case can formally transfer to our internal legal team to commence legal proceedings and lodging and adoption application.”
I acknowledge that you are responsible for [Child 1] and you are considered the primary carer (Prospective Adoptive Parent). However, based on the evidence provided and the nature of the placement, the adoption application has not yet been lodged and the adoption process has not been established.
Therefore, the decision to reject your claim for Parental Leave Pay in respect of [Child 1] is correct.
The authorised review officer’s quote is from the letter dated 23 August 2024, which Miss Catleugh obtained after Centrelink’s initial rejection of her claim. It is worth quoting the entire contents of that letter:
This letter is to confirm that Miss Catleugh is a dually authorised carer for [Organisation 1] and has been part of [the] Program since 23 December 2023.
Miss Catleugh has been caring full time for [Child 1] (DOB [date]/08/2022) since 23 December 2023 and will continue to do so whilst open adoption is being achieved.
As part of the Open Adoption process with [Organisation 1], Miss Catleugh is required to take care of [Child 1] full time, meeting all of his day-to-day needs, enrolling him in child care, supporting his socialisation, medical and developmental needs, managing birth family contact, as well as returning to work herself. [Organisation 1] will attend our internal adoption panel in February 2025 to show satisfaction that [Child 1]'s case can formally transfer to our internal legal team to commence legal proceedings and lodging an adoption application. In order for this process to occur, Miss Catleugh is required to have full time care of [Child 1] for approximately 12 months (December 2023-February 2025).
Whilst Miss Catleugh is identified as a carer, she is dually authorised as a long term/adoptive carer with [Child 1]'s permanency goal being "Open Adoption". Upon commencing legal proceedings (proposed to start in early 2025), Miss Catleugh will be identified as Prospective Adoptive Parent as a legal term that is used prior to an order being granted.
The issue is whether [Organisation 1] entrusted [Child 1] to the care of Miss Catleugh as part of the process for the adoption: paragraph 275(2)(c) of the Act. When Miss Catleugh lodged her claim for parental leave pay, [Child 1]’s case had not been formally transferred to [Organisation 1] ’s internal legal team to commence legal proceedings and lodge an adoption application. However, there is no reason to confine “the process for the adoption of the child” to a period that starts with those legal steps. It is clear from [Organisation 1] ’s letters that “the process for the adoption of the child” includes mandatory steps that precede those legal steps. To quote [Organisation 1] again, with emphasis added:
Miss Catleugh has been caring full time for [Child 1] (DOB [date]/08/2022) since 23 December 2023 and will continue to do so whilst open adoption is being achieved.
As part of the Open Adoption process with [Organisation 1], Miss Catleugh is required to take care of [Child 1] full time, […]
At the hearing, Ms [A] explained that Miss Catleugh applied to [Organisation 1] to become an adoptive parent and in 2019 it started interviewing her with a view to assessing her suitability as an adoptive parent. One of the requirements of having [Child 1] placed in her care was that she took at least six months’ leave from her employment from the date of placement. That requirement is imposed to promote bonding between the child and the adult, and to ensure that the adult is well placed to discharge their other responsibilities in respect of the child, such as facilitating a relationship between the child and the birth mother. Ms [A] confirmed that the initial placement period, which is part of the Open Adoption process, is approximately 12 months. She added that the formal legal process of adoption is also a lengthy process. She said that each case is different, but “if things run smoothly” the formal legal process usually takes approximately 12 to 18 months. [Organisation 1] entrusted [Child 1] to the care of Miss Catleugh as part of the process of adoption. Paragraph 275(2)(c) of the Act is satisfied.
The likely timeline for Miss Catleugh’s adoption of [Child 1] is set out above. [Child 1] will be adopted before he turns 16. Paragraph 275(2)(d) of the Act is satisfied.
The requirements of subsection 275(2) of the Act are satisfied and therefore the reference in subparagraph 60(b)(ii) of the Act to the child’s first birthday is a reference to the first anniversary of the day that [Child 1] became entrusted to Miss Catleugh’s care: paragraph 275(1)(d) of the Act. The first anniversary occurred on 22 December 2024. Miss Catleugh lodged her claim on 16 January 2024. Her claim was lodged during the period specified in section 60 of the Act.
Section 6 of the Act includes a definition of “parent”. It is not an exhaustive definition. “Parent”, when used in relation to a child who has been adopted, means an adoptive parent of the child. The definition is silent in respect of a child who is in the process of being adopted. However, section 275 of the Act extends the ordinary definition of “adopted child” and, for the reasons already stated, [Child 1] was an adopted child for the purposes of the Act when Miss Catleugh lodged her claim, even though the adoption process had not been finalised. By extension, Miss Catleugh was [Child 1]’s adoptive parent at that time.
In summary, when Miss Catleugh lodged her claim for parental leave pay, she was [Child 1]’s adoptive parent for the purposes of the Act, he was her adoptive child, and her claim was lodged within time. The matter will be remitted to Centrelink to determine whether Miss Catleugh satisfied the other requirements for being granted parental leave pay.

DECISION

The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with orders that:

when Miss Catleugh lodged her claim for parental leave pay, she was the adoptive parent of [Child 1] for the purposes of the Paid Parental Leave Act 2010 (the Act); and
Miss Catleugh lodged her claim for parental leave pay within the period specified in section 60 of the Act.