For the purposes of being considered an FTB child, FA legislation refers to being in the care of an adult. Reference is also made to legal responsibility for the day-to-day care, welfare and development of the individual.
Care generally includes physical care; however, the importance of physical care decreases as the child (also refers to a young person) becomes older. For example, a baby or toddler's care needs are largely immediate and physical (feeding, nappy changing, bathing, supervision). As the child grows older, they will gradually start to meet many of their physical care needs themselves.
Care also includes mental, moral and emotional support including love, comfort and discipline. Schooling is essential for the child's mental development and attention to matters like healthy activities is also an important aspect of care. This means that the adult must maintain a measure of oversight with a view to protection and guidance of the child.
Some examples of care include:
When assessing levels of 'care' consideration of the full circumstances of each case must be taken into account to decide whether care remains with a parent, is shared with others, or is not present.
It may be difficult to determine whether a child (aged 16 years or older) who is living away from home is in the care of an individual for FTB purposes. This is particularly the case for a child aged 18 years or older because their parent(s) or legal guardian(s) have ceased to have legal responsibility for them.
Generally, an older child living away from home is providing for many of their own care needs, including making decisions about who they spend their time with, daily activities, schooling and health issues, as well as meeting their own day to day needs (such as meal preparation, hygiene, transport, socialising etc.).
Provision of substantial financial support by an individual to a child is a key indicator that they are in the care of the individual. The financial support can be in relation to daily costs such as food, accommodation and transport, and/or in relation to longer term costs such as school fees, paying for airfares home for holidays, clothing and health and dental care.
In cases where the financial support provided is limited, consideration should also be given to other factors that suggest that the individual's involvement with the child could still be considered as providing care for the child. For example, evidence that the individual is actively involved in major decisions relating to the child's health, schooling and relationships and/or career development would strengthen the case that the child is in the care of the individual.
Act reference: FAAct section 22 When an individual is an FTB child of another individual
Last reviewed: 30 April 2012