Sidell and Secretary, Department of Social Services Chief Executive Centrelink (Social security)

[2025] ARTA 319

Sidell and Secretary, Department of Social Services Chief Executive Centrelink (Social security) [2025] ARTA 319 (18 March 2025)

Applicant:  Mrs Sidell

Respondent:  Secretary, Department of Social Services

Chief Executive Centrelink

Tribunal Number:   2024/MP002768 

Tribunal:  General Member A Byers

Place:Brisbane

Date:18 March 2025

Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that Mrs Sidell’s PPL claim is to be reassessed on the footing that she is a person able to make a PPL claim under paragraph 54(1)(g) of the Paid Parental Leave Act 2010.

CATCHWORDS

SOCIAL SECURITY – paid parental leave – applicant’s eligibility to lodge claim – newborn baby cared for by aunt and uncle – legal guardianship arranged but no adoption proceedings started – exceptional circumstances – birth mother incapable of caring for child or unreasonable for her to care – returned to another country to study, with no further contact or intention of caring – no maternal connection, but no medical or psychological diagnosis – extreme family breakdown – decision under review set aside and sent back with directions

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

BACKGROUND

1. Mrs Sidell lodged an online claim for parental leave pay on 6 May 2024.  The claim was lodged in respect of [the child] who was born [in] May 2024.  [The child’s] birth mother is [Ms A] who is Mrs Sidell’s niece.

2. On 17 July 2024, Centrelink rejected Mrs Sidell’s claim.  Centrelink subsequently reconsidered the claim but confirmed its decision on 21 August 2024.  Centrelink’s rejection notice set out it reasons as follows:

   We cannot pay you Parental Leave Pay for [the child] because your circumstances do not meet exceptional circumstances criteria.

   Exceptional circumstances apply when the birth mother of a child or adoptive parent of a child is unable to care for the child for at least 26 weeks (for example due to serious illness or injury).

3. On 2 September 2024, an authorised review officer affirmed the decision.  According to the authorised review officer:

   The birth mother is not incapable of caring for [the child]. This means you do not qualify for

   Parental Leave Pay under exceptional circumstances. 

4. On 15 November 2024, Mrs Sidell sought review by the Tribunal and the matter was heard in Brisbane on 13 March 2025.  Mrs Sidell attended by telephone and provided sworn evidence.

ISSUE

1. The central issue is whether Mrs Sidell is a person able to lodge a PPL claim for [the child].

CONSIDERATION

The legislation

1. The statutory provisions relevant to this review are contained in the Paid Parental Leave Act 2010 (the Act). 

2. As far as is relevant, under section 11A of the Act parental leave pay is payable to a claimant if a determination that it is payable is in force under section 13 (or section 14).  Section 13 requires that a primary claimant has made an effective primary claim.  

3. Part 2-4 of the Act deals with claims for parental leave pay.  By way of a guide to Part 2-4, section 51 provides:

   This Part is about claims for parental leave pay. A person cannot be paid parental leave pay unless the person has first made a claim for it. Division 2 sets out the rules about claims. There are 2 types of claims: PPL claims and special PPL claims. These claims relate to each other, although PPL claims are the main type of claim. PPL claims will often be the only claims that are made. Section 54 sets out who can make each type of claim.

   The Secretary cannot make a payability determination on a claim unless it is an effective claim. To be effective, the claim must be made by the right person and satisfy the requirements in the provisions listed in section 55. One of those requirements is that the claim must be in the form, and contain the information, required by the Secretary (see section 56). Another requirement is that the claim must be made in the period set out in section 60.

4. For present purposes it will suffice to consider the requirements for a PPL claim.  Under section 52 of the Act only a natural person can make a PPL claim.  Subsection 54(1) of the Act specifies who can make a PPL claim:

   54  Who can make a PPL claim or 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;

   (c) a person who:

   (i) is a parent of the child; and

   (ii) is not the child’s birth mother;

   (d) the partner of the child’s birth mother;

   (e) the partner of an adoptive parent of the child;

   (f) the partner of a person covered by paragraph (c);

   (g) a person who satisfies the circumstances prescribed by the PPL rules as being exceptional circumstances in which a PPL claim can be made.

5. At the hearing, Mrs Sidell confirmed that, although [the child] will be permanently in her care, she has not instigated adoption proceedings due to the cost involved. It follows that, to be a person able to lodge a PPL claim, Mrs Sidell must satisfy paragraph 54(1)(g). The PPL rules referred to in this provision are found in the Paid Parental Leave Rules 2021 (the Rules).

6. Part 3 of the Rules deals with PPL claims.  Section 26 of the Rules provides:

   26  Exceptional circumstances for PPL claims—general

   (1) This section applies in relation to a child (other than a child born because of a surrogacy arrangement).

   (2) For the purposes of paragraph 54(1)(g) of the Act, the exceptional circumstances in which a PPL claim can be made are:

   (a) the child:

   (i) is in the care of the person; and

   (ii) has been, or is likely to be, in that care for a continuous period of at least 26 weeks; and

   (b) the person became, or is likely to become, the child’s primary carer:

   (i) before the child’s first birthday; or

   (ii) for an adopted child—before the first anniversary of the placement of the child; and

   (c) one of the circumstances in subsection (3) applies; and

   (d) if the person is not a parent or a partner of a parent of the child—the person satisfies the additional circumstance in subsection (4).

   (3) For the purposes of paragraph (2)(c), the circumstances are that either:

   (a) the child’s birth mother, or the child’s adoptive parent or adoptive parents, as the case requires:

   (i) are incapable of caring for the child; and

   (ii) have been, or are likely to be, incapable of caring for the child for a continuous period of at least 26 weeks; or

   (b) the Secretary is satisfied on reasonable grounds that:

   (i) the person became the primary carer of the child in special circumstances; and

   (ii) it would be unreasonable for the child’s birth mother, or the child’s adoptive parent or adoptive parents, as the case requires, to care for the child; and

   (iii) taking into account the arrangements for the child’s care with the person in comparison with those in the child’s previous family situation, it is in the interests of the child for the person to care for the child.

   Note: For when it is unreasonable for a person to care for a child, see section 6.

7. Subsection 26(4) of the Rules deals with circumstances where either a child’s birth mother has a partner or adoption is involved.  For the reasons outlined below, this provision is not relevant.

8. Section 6 of the Rules specifies when it is unreasonable for a birth mother to care for their child in the following terms:

   unreasonable: it would be unreasonable for a person to care for a child if:

   (a) there has been extreme family breakdown, or similar circumstances, in relation to the family situation in which the person has cared, or would care, for the child; or

   (b) there is a serious risk to the child’s physical or mental wellbeing from violence, neglect or sexual abuse in the family situation in which the person has cared, or would care, for the child.

9. As to whether the birth mother is incapable of caring for their child, section 7 of the Rules provides:

   7  Meaning of incapable of caring for a child

   (1) A person is incapable of caring for a child if the person is not able to care for the child because:

   (a) there is a parenting order (within the meaning of the Family Law Act 1975) in force resulting in the person not providing care for the child; or

   (b) the person is deceased; or

   (c) the person is in prison or otherwise institutionalised; or

   (d) the person’s whereabouts are unknown after all reasonable efforts have been made to locate the person; or

   (e) the person suffers from a medical condition; or

   (f) the Secretary is satisfied that there is another reason, beyond the control of the person, that means the person is not able to care for the child.

   (2) A person is not incapable of caring for a child if the person voluntarily chooses not to care for the child.

   Example: A person may voluntarily choose not to care for a child by deciding to travel overseas without the child or by deciding to look after other relatives and not the child.

10. The Australian Government’s Paid Parental Leave Guide covers claimants for parental leave pay in exceptional circumstances at 2.6.2, although it does not appear to provide anything more than a restatement of the provisions in the Rules set out above. 

Mrs Sidell’s circumstances 

1. The following is a summary of Mrs Sidell’s evidence at the hearing:

   -     [Ms A] is not an Australian resident but is able to stay in Australia as a [Country 1] citizen (as a [visa] holder).  [Ms A]’s parents live in [Country 2].

   -     [Ms A] returned to Australia in December 2023 after studying in [Country 3].  [Ms A] was pregnant and stated she had no idea who the father was.  

   -     Mrs Sidell gave up her job in April 2024 to assist [Ms A] with the birth and in anticipation that she would be the newborn’s carer.  Mrs Sidell arranged the maternity hospital and [Ms A] stayed with Mrs Sidell (and her husband) until [the child]’s birth.  [Ms A] moved in with another family member immediately after the birth saying she did not wish to see the child or become attached.

   -     At [Ms A]’s request, the birth has been kept from her parents.  [Ms A] has another child which she has never cared for and which her parents look after.  [Ms A] does not “open up” and has only said she did not want her parents to know because she was scared they might do something to her.

   -     Mrs Sidell suggested to [Ms A] that they were willing to help her if she stayed in Australia to care for [the child].  However, [Ms A] refused to do so.

   -     [Ms A] returned to her studies in [Country 3] in August 2024.  [Ms A] has not called Mrs Sidell about [the child] and has indicated she does not wish to have anything to do with her.

   -     There is no medical evidence suggesting [Ms A] has mental health issues.  However, [Ms A] appears detached and does not seem to show normal emotions.  Mrs Sidell suspects [Ms A] takes drugs but has no direct evidence for this suspicion.

   -     Mrs Sidell continues to care for [the child] and will do so permanently.  Mrs Sidell and her husband are experiencing financial difficulties as only he is working. 

2. The hearing papers include several statements by [Ms A].  On 8 May 2024, [Ms A] stated that she agrees for Mrs Sidell and her husband to be [the child]’s legal guardians.  [Ms A] indicated she intended to return to studies in August 2024 and believed “it is a more safe and stable life for [the child] to stay with them”.  In an FAO12 form signed on 12 June 2024, [Ms A] reiterated that she gives permission for Mrs Sidell to look after her baby permanently as she was intending to study abroad. 

3. In a later more detailed statement, [Ms A] writes:

   I am [Ms A] ([the child]'s mother), I am writing to inform you that I have already left the country after having [the child]. I trust my uncle [Mr B] and aunty Mrs Sidell to have [the child] permanently in their care, I have made mistakes and I have taken a path that I am incapable to keep up with, and my parents are unaware and will never accept my situation if they were to find out. So, this information will stay disclosed from them.

   And that is the reason why I have left [the child] for them to care for, I am back to school and carrying on with my normal day to day life like nothing happened.  My uncle and aunty are the most caring and loving individuals that I know, and I won't be taking [the child] away from them. I believe wholeheartedly that they will take better care of [the child], for I know in myself that I don't have the ability to look after a baby.

   They have been paying lawyers for adoption, and my aunty has been staying home from work so she can take care of [the child].  Please respect my decision that I agreed on and nothing or no one will change it.

4. Mrs Sidell and [Ms A] ‘formalised’ the arrangement before Relationships Australia [in] August 2024. 

5. I accept Mrs Sidell’s summarised evidence in full.  Looking at section 26 of the Rules, paragraphs 26(2)(a) and (b) are plainly satisfied.  In this regard, [the child] came into Mrs Sidell’s care when she was born and will remain in her care for the foreseeable future.  As [Ms A] does not have a partner (and claims not to know the father’s identity), Mrs Sidell satisfies paragraph 26(2)(d) by default.  It therefore remains to determine if Mrs Sidell satisfies paragraph 26(2)(c) by meeting the requirements of subsection 26(3).  Mrs Sidell can satisfy subsection 26(3) by satisfying either paragraph 26(3)(a) or 26(3)(b).

6. Paragraph 26(3)(a) of the Rules will be satisfied if [Ms A] was incapable of caring for [the child] in any continuous period of 26 weeks after her birth.  As noted, section 7 of the Rules prescribes the various circumstances in which a person is incapable of caring for their child.  Including that there is no probative evidence suggesting [Ms A] has a medical condition preventing her from caring for [the child], paragraphs 7(1)(a) to (e) are not met.  Paragraph 7(1)(f) can be met if a decision maker is satisfied that there is a further reason, beyond [Ms A]’s control, that means she is not able to care for [the child].

7. In my view, on the information available it is not open to conclude on balance that there was something beyond [Ms A]’s control that meant she was unable to care for [the child].  It seems evident that [Ms A] lacks the usual strong maternal connection with her child and in fact seems completely emotionally detached.  However, in the absence of a medical or psychological diagnosis it cannot be concluded with any confidence that this detachment or lack of ‘a maternal instinct’ is due to something outside [Ms A]’s control.  Accordingly, I consider paragraph 26(3)(a) is not satisfied.

8. Under paragraph 26(3)(b) of the Rules it must be the case that:

   (i)   Mrs Sidell became [the child]’s primary carer in special circumstances;

   (ii)     it would be unreasonable for [Ms A] to care for [the child]; and

   (iii)   comparing Mrs Sidell’s care of [the child] with the care that could be expected from [Ms A], it is in [the child]’s interests to be in Mrs Sidell’s care.

9. Although paragraph 26(3) is framed in terms of a decision-maker having to be satisfied as to conditions (i) to (iii) on “reasonable grounds”, it is unclear that this is intended to mean anything other than that the decision-maker needs to be satisfied on the balance of probabilities having regard to the available evidence.

10. Regarding condition (i), although what amounts to special circumstances is not defined, it is well established that the circumstances must be unusual, out of the ordinary or uncommon (see, for example, Dranichnikov v Centrelink [2003] FCAFC 133). I think it would be something of an understatement to say that the circumstances in which [the child] came into Mrs Sidell’s care are unusual, out of the ordinary or uncommon. The circumstances are highly unusual, featuring a birth mother entirely uninterested in either caring for or having any contact with her child. Those circumstances are plainly special.

11. Regarding condition (ii), whether it is unreasonable for [Ms A] to care for Kaimani depends on whether one (or more) of the various characterisations in section 6 of the Rules are satisfied.  My view is that there is quite simply an extreme family breakdown.  The breakdown involves a birth mother who has abrogated any responsibility for her child.  In [Ms A]’s words “I am back to school and carrying on with my normal day to day life like nothing happened.”  Mrs Sidell has selflessly stepped into the parental role that [Ms A] has roundly eschewed.   

12. For this same reason, condition (iii) is satisfied.  Plainly, Mrs Sidell is providing a fully supportive and caring environment for [the child] in circumstances where [Ms A] is palpably uninterested in providing any care.

(3) Conclusion

1. Mrs Sidell is a person able to make a PPL claim by virtue of being a person who satisfies section 54(1)(g) of the Act.  The decision under review to reject the claim will accordingly be set aside with a direction that the claim is to be reassessed on this footing.

DECISION

The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that Mrs Sidell’s PPL claim is to be reassessed on the footing that she is a person able to make a PPL claim under paragraph 54(1)(g) of the Paid Parental Leave Act 2010.

Date of hearing: Thursday, 13 March 2025