A New Tax System (Family Assistance) Act 1999

Pt 3 heading substituted by No 22 of 2017, s 3 and Sch 1 item 34, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt 4A heading. The heading formerly read:

PART 3 - ELIGIBILITY FOR FAMILY ASSISTANCE

Div 2 substituted by No 70 of 2013, s 3 and Sch 2A item 21, effective 1 March 2014. For application and transitional provisions, see note under Sch 1 Pt 5 Div 1A . Div 2 formerly read:

Division 2 - Eligibility for baby bonus

Subdivision A - Eligibility of individuals for baby bonus in normal circumstances

SECTION 36 When an individual is eligible for baby bonus in normal circumstances  
36(1)
An individual is eligible for baby bonus in respect of a child in any of the 4 cases set out in this section.

Parent of child

36(2)
First, an individual is eligible for baby bonus in respect of a child if:

(a) the individual is a parent of the child; and

(aa) the child is an FTB child of the individual; and

(ab) either:

(i) the individual is the primary carer of the child at any time within the period of 26 weeks starting on the day of the child ' s birth; or

(ii) the individual is a member of a couple at any time within the period of 26 weeks starting on the day of the child ' s birth and the individual ' s partner is the primary carer of the child at that time; and

(b) the individual either:

(i) is eligible for family tax benefit in respect of the FTB child at any time within the period of 26 weeks starting on the day of the child ' s birth; or

(ii) would be so eligible except that the individual ' s rate of family tax benefit, worked out under Division 1 of Part 4 , is nil; and

(ba) in a case where the individual or the individual ' s partner is eligible for parental leave pay in respect of the child - the PPL period applying to the individual ' s partner has not started; and

(bb) in a case where a former partner of the individual, or of the individual ' s partner, is eligible for parental leave pay in respect of the child - the PPL period applying to the former partner:

(i) has not started; or

(ii) did not start while the former partner was the partner of the individual, or of the individual ' s partner; and

(c) if the individual is, under a law of a State or Territory, responsible (whether alone or jointly) for registering the birth of the child in accordance with the law:

(i) at the time the claim for payment of baby bonus is made, the birth of the child has been registered in accordance with the law; or

(ii) at the time the claim for payment of baby bonus is made, the individual has applied to have the birth of the child registered in accordance with the law; or

(iii) the Secretary is notified, or becomes aware, within 52 weeks after the birth of the child, that the individual applied to have the birth of the child registered in accordance with the law; and

(d) the claim for payment of baby bonus contains an estimate of the sum of:

(i) the individual ' s adjusted taxable income; and

(ii) if the individual is a member of a couple on the day the claim is made - the adjusted taxable income of the individual ' s partner;

for the period of 6 months beginning on the first day on which paragraph (ab) applies; and

(e) that estimate is less than or equal to $75,000 and the Secretary considers that estimate to be reasonable.

 View history note

 Hide history note

History

S 36(2) amended by No 53 of 2011, s 3 and Sch 5 items 1 and 2, by substituting para (ab) and substituting " first day on which paragraph (ab) applies " for " day of the child ' s birth " in para (d), applicable in relation to claims for payment of baby bonus that are made on or after 1 July 2011. Para (ab) formerly read:

(ab) the individual, or the individual ' s partner, is, or was, the primary carer of the child at any time within the period of 26 weeks starting on the day of the child ' s birth; and

S 36(2) amended by No 105 of 2010, s 3 and Sch 1 items 4 and 5, by inserting paras (ab), (ba) and (bb), effective 1 January 2011.

S 36(2) amended by No 63 of 2008, s 3 and Sch 2 items 1 to 3, by substituting " 26 " for " 13 " in para (b)(i), substituting " 52 " for " 26 " in para (c)(iii) and inserting paras (d) and (e), applicable in relation to children born on or after 1 January 2009.

S 36(2) amended by No 146 of 2006, s 3 and Sch 8 items 33 and 34, by inserting para (aa) and substituting " in respect of the FTB child " for " in respect of the child " in para (b)(i), effective 1 July 2008.

S 36(2) amended by No 82 of 2007, s 3 and Sch 6 item 8, by inserting para (c) at the end, applicable to claims for payment of baby bonus made in relation to children born on or after 1 July 2007.

36(2A)
If the Secretary is satisfied that the claimant was unable to make a claim for payment of baby bonus in normal circumstances because of severe illness associated with the birth of the child concerned, the Secretary may extend the period of 52 weeks mentioned in subparagraph (2)(c)(iii) to such longer period as the Secretary considers appropriate.

 View history note

 Hide history note

History

S 36(2A) amended by No 63 of 2008, s 3 and Sch 2 item 4, by substituting " 52 " for " 26 " , effective 1 January 2009.

S 36(2A) inserted by No 82 of 2007, s 3 and Sch 6 item 9, applicable to claims for payment of baby bonus made in relation to children born on or after 1 July 2007.

Child entrusted to care of individual or individual ' s partner

36(3)
Second, an individual is eligible for baby bonus in respect of a child if:

(a) the individual is not a parent of the child; and

(b) either:

(i) the child becomes entrusted to the care of the individual at any time within the period of 26 weeks starting on the day of the child ' s birth; or

(ii) the individual is a member of a couple at any time within the period of 26 weeks starting on the day of the child ' s birth and the child becomes entrusted to the care of the individual ' s partner at that time; and

(c) either:

(i) the individual is the primary carer of the child at any time within the period of 26 weeks starting on the day of the child ' s birth; or

(ii) the individual is a member of a couple at any time within the period of 26 weeks starting on the day of the child ' s birth and the individual ' s partner is the primary carer of the child at that time; and

(ca) the child is an FTB child of the individual; and

(cb) the individual, or the individual ' s partner, continues, or is likely to continue, to be the primary carer of the child for not less than 26 weeks; and

(d) the individual either:

(i) is eligible for family tax benefit in respect of the FTB child at any time within the period of 26 weeks starting on the day of the child ' s birth; or

(ii) would be so eligible except that the individual ' s rate of family tax benefit worked out under Division 1 of Part 4 , is nil; and

(da) in a case where the individual or the individual ' s partner is eligible for parental leave pay in respect of the child - the PPL period applying to the individual or the individual ' s partner has not started; and

(db) in a case where a former partner of the individual, or of the individual ' s partner, is eligible for parental leave pay in respect of the child - the PPL period applying to the former partner:

(i) has not started; or

(ii) did not start while the former partner was the partner of the individual, or of the individual ' s partner; and

(e) the claim for payment of baby bonus contains an estimate of the sum of:

(i) the individual ' s adjusted taxable income; and

(ii) if the individual is a member of a couple on the day the claim is made - the adjusted taxable income of the individual ' s partner;

for the period of 6 months beginning on the first day on which paragraph (c) applies; and

(f) that estimate is less than or equal to $75,000 and the Secretary considers that estimate to be reasonable.

 View history note

 Hide history note

History

S 36(3) amended by No 70 of 2013, s 3 and Sch 3 item 37, by substituting " becomes entrusted " for " is entrusted " in paras (b)(i) and (ii), applicable in relation to a child becoming entrusted to the care of a person before, on or after 28 June 2013. However, the amendments do not affect the rights or liabilities arising between parties to a proceeding heard and finally determined by a court before 28 June 2013, to the extent that those rights or liabilities arose from, or were affected by, a child being entrusted to the care of a person.

S 36(3) amended by No 53 of 2011, s 3 and Sch 5 items 3 and 4, by substituting paras (b) and (c) and substituting " first day on which paragraph (c) applies " for " day the child is entrusted to care as mentioned in paragraph (b) " in para (e), applicable in relation to claims for payment of baby bonus that are made on or after 1 July 2011. Paras (b) and (c) formerly read:

(b) within the period of 26 weeks starting on the day of the child ' s birth:

(i) the child is entrusted to the care of the individual or the individual ' s partner; and

(ii) the individual, or the individual ' s partner, becomes the primary carer of the child; and

(c) the child continues, or is likely to continue, in that care for not less than 26 weeks; and

S 36(3) amended by No 105 of 2010, s 3 and Sch 1 items 6 to 8, by substituting para (b) and inserting paras (cb), (da) and (db), effective 1 January 2011. Para (b) formerly read:

(b) the child is entrusted to the care of the individual or the individual ' s partner within the period of 26 weeks starting on the day of the child ' s birth; and

S 36(3) amended by No 63 of 2008, s 3 and Sch 2 items 5 and 6, by substituting " 26 " for " 13 " (wherever occurring) and inserting paras (e) and (f), applicable in relation to children who become entrusted to care (within the meaning of the A New Tax System (Family Assistance) Act 1999 , as amended by Part 2 of Schedule 3 to the Family Assistance and Other Legislation Amendment Act 2013 ) on or after 1 January 2009.

S 36(3) amended by No 146 of 2006, s 3 and Sch 8 items 35 and 36, by inserting para (ca) after para (c) and substituting " in respect of the FTB child " for " in respect of the child " in para (d)(i), effective 1 July 2008.

Stillborn child

36(4)
Third, an individual is eligible for baby bonus in respect of a child if:

(a) the child is a stillborn child; and

(aa) had the child been born alive:

(i) the child would have been an FTB child of the individual at birth; and

(ii) the individual, or the individual ' s partner, would have been the primary carer of the child at birth; and

(b) either:

(i) the individual would have been eligible for family tax benefit " in respect of the FTB child, at any time within the period of 26 weeks starting on the day of the child ' s delivery, assuming the child had not been a stillborn child; or

(ii) the individual would have been so eligible on the assumption described in subparagraph (i) except that the individual ' s rate of family tax benefit, worked out under Division 1 of Part 4 , is nil; and

(ba) in a case where the individual or the individual ' s partner is eligible for parental leave pay in respect of the child - the PPL period applying to the individual or the individual ' s partner has not started; and

(ba) in a case where a former partner of the individual, or of the individual ' s partner, is eligible for parental leave pay in respect of the child - the PPL period applying to the former partner:

(i) has not started; or

(ii) did not start while the former partner was the partner of the individual, or of the individual ' s partner; and

(c) the claim for payment of baby bonus contains an estimate of the sum of:

(i) the individual ' s adjusted taxable income; and

(ii) if the individual is a member of a couple on the day the claim is made - the adjusted taxable income of the individual ' s partner;

for the period of 6 months beginning on the day of the child ' s delivery; and

(d) that estimate is less than or equal to $75,000 and the Secretary considers that estimate to be reasonable.

 View history note

 Hide history note

History

S 36(4) amended by No 105 of 2010, s 3 and Sch 1 items 9 and 10, by substituting para (aa) and inserting paras (ba) and (bb), effective 1 January 2011. Para (aa) formerly read:

(aa) if the child had been born alive, the child would have been an FTB child of the individual at birth; and

S 36(4) amended by No 63 of 2008, s 3 and Sch 2 items 7 and 8, by substituting " 26 " for " 13 " in para (b)(i) and inserting paras (c) and (d), applicable in relation to children delivered on or after 1 January 2009.

S 36(4) amended by No 146 of 2006, s 3 and Sch 8 items 37 and 38, by inserting para (aa) after para (a) and substituting " in respect of the FTB child " for " in respect of the child " in para (b)(i), effective 1 July 2008.

Adoption

36(5)
Fourth, an individual is eligible for baby bonus in respect of a child if:

(a) the child becomes entrusted to the care of the individual on a day; and

(aa) it is an authorised party that entrusts the child to the care of the individual; and

(ab) the authorised party does so as part of the process for the adoption of the child by the individual; and

(b) the child is aged under 16 on that day; and

(bb) the child is an FTB child of the individual; and

(bc) either:

(i) the individual is the primary carer of the child at any time within the period of 26 weeks starting on that day; or

(ii) the individual is a member of a couple at any time within the period of 26 weeks starting on that day and the individual ' s partner is the primary carer of the child at that time; and

(c) the individual either:

(i) is eligible for family tax benefit in respect of the FTB child at any time within the period of 26 weeks starting on that day; or

(ii) would be so eligible except that the individual ' s rate of family tax benefit, worked out under Division 1 of Part 4 , is nil; and

(ca) in a case where the individual or the individual ' s partner is eligible for parental leave pay in respect of the child - the PPL period applying to the individual or the individual ' s partner has not started; and

(cb) in a case where a former partner of the individual, or of the individual ' s partner, is eligible for parental leave pay in respect of the child - the PPL period applying to the former partner:

(i) has not started; or

(ii) did not start while the former partner was the partner of the individual, or of the individual ' s partner; and

(d) the claim for payment of baby bonus contains an estimate of the sum of:

(i) the individual ' s adjusted taxable income; and

(ii) if the individual is a member of a couple on the day the claim is made - the adjusted taxable income of the individual ' s partner;

for the period of 6 months beginning on the first day on which paragraph (bc) applies; and

(e) that estimate is less than or equal to $75,000 and the Secretary considers that estimate to be reasonable.

 View history note

 Hide history note

History

S 36(5) amended by No 70 of 2013, s 3 and Sch 3 items 38 and 39, by substituting paras (a) and (b), inserting paras (aa) and (ab) and substituting " that day " for " the day the child is entrusted to the care of the individual " in paras (bc)(i) and (ii) and (c)(i), applicable in relation to a child becoming entrusted to the care of a person before, on or after 28 June 2013. However, the amendments do not affect the rights or liabilities arising between parties to a proceeding heard and finally determined by a court before 28 June 2013, to the extent that those rights or liabilities arose from, or were affected by, a child being entrusted to the care of a person. Paras (a) and (b) formerly read:

(a) as part of the process for the adoption of the child by the individual, the child is entrusted to the care of the individual by an authorised party; and

(b) the child is aged under 16 at the time the child is entrusted to the care of the individual; and

S 36(5) amended by No 53 of 2011, s 3 and Sch 5 items 5 and 6, by substituting para (bc) and substituting " first day on which paragraph (bc) applies " for " day the child is entrusted to the care of the individual " in para (d), applicable in relation to claims for payment of baby bonus that are made on or after 1 July 2011. Para (bc) formerly read:

(bc) the individual, or the individual ' s partner, is, or was, the primary carer of the child at any time within the period of 26 weeks starting on the day the child is entrusted to the care of the individual; and

S 36(5) amended by No 105 of 2010, s 3 and Sch 1 items 11 and 12, by inserting paras (bc), (ca) and (cb), effective 1 January 2011.

S 36(5) amended by No 63 of 2008, s 3 and Sch 2 items 37 and 38, by substituting " 16 " for " 2 " in para (b) and repealing para (ba), applicable in relation to children who become entrusted to care (within the meaning of the A New Tax System (Family Assistance) Act 1999 , as amended by Part 2 of Schedule 3 to the Family Assistance and Other Legislation Amendment Act 2013 ) on or after 1 January 2009. Para (ba) formerly read:

(ba) if the child arrives in Australia from overseas as part of the process for the adoption of the child - the child is aged under 2 when the child arrives in Australia; and

S 36(5) amended by No 63 of 2008, s 3 and Sch 2 items 9 and 10, by substituting " 26 " for " 13 " in para (c)(i) and inserting paras (d) and (e), applicable in relation to children who become entrusted to care (within the meaning of the A New Tax System (Family Assistance) Act 1999 , as amended by Part 2 of Schedule 3 to the Family Assistance and Other Legislation Amendment Act 2013 ) on or after 1 January 2009.

S 36(5) amended by No 146 of 2006, s 3 and Sch 8 items 39 and 40, by inserting para (bb) after para (ba) and substituting " in respect of the FTB child " for " in respect of the child " in para (c)(i), effective 1 July 2008.

S 36(5) amended by No 61 of 2005, s 3 and Sch 2 items 1 and 2, by substituting " aged under 2 " for " not more than 26 weeks of age " in para (b) and inserting para (ba), effective 1 July 2005. No 61 of 2005, s 3 and Sch 2 Part 2 contains the following application, transitional and other provisions:

Definition of commencement  
4
In this Part:

commencement
means the commencement of the amendments made by Part 1 of this Schedule.

Application of amendments made by Part 1  
5
The amendments made by Part 1 of this Schedule apply in relation to any child:

(a) who is, as part of the process for the adoption of the child by an individual, entrusted to the care of the individual on or after 1 July 2004; and

(b) in respect of whom baby bonus has not already been paid. 6 Transitional extension of claim deadline  
(1)
This item applies to a claim for payment of baby bonus in normal circumstances if:

(a) before commencement, a child is entrusted to the care of the claimant, as part of the process for the adoption of the child by the claimant; and

(b) if the child arrives in Australia from overseas as part of the process for the adoption - the child arrives in Australia before commencement.

(2)
Paragraphs 39(2)(b) and (c) of the A New Tax System (Family Assistance) (Administration) Act 1999 do not apply in relation to the claim.

(3)
The claim is not effective if made later than 26 weeks after commencement.

(4)
The reference in subsection 39(3) of the A New Tax System (Family Assistance) (Administration) Act 1999 to the period of 26 weeks mentioned in subsection (2) is taken to be a reference to the period of 26 weeks mentioned in subitem (3).
7 No baby bonus if maternity allowance already paid in respect of child  
(1)
An individual is not eligible for baby bonus in respect of a child if:

(a) after this item commences, the child is entrusted to the individual ' s care, as part of the process for the adoption of the child by the individual; and

(b) maternity allowance has been paid to any person in respect of the child.

(2)
In this item:

maternity allowance
means maternity allowance under Division 2 of Part 3 of the A New Tax System (Family Assistance) Act 1999 , as in force before item 1 of Schedule 2 to the Family Assistance Legislation Amendment (More Help for Families - Increased Payments) Act 2004 commenced.

Estimate of adjusted taxable income

36(6)
For the purposes of paragraph (2)(d), (3)(e), (4)(c) or (5)(d):

(a) a reference in Schedule 3 to an income year is taken to be a reference to the 6 month period mentioned in that paragraph; and

(b) disregard subclause 2(2) and clauses 3 and 3A of that Schedule.

 View history note

 Hide history note

History

S 36(6) inserted by No 63 of 2008, s 3 and Sch 2 item 11, effective 1 January 2009.

Definition of parent

36(7)
In this section:

parent
includes a relationship parent.

 View history note

 Hide history note

History

S 36(7) inserted by No 144 of 2008, s 3 and Sch 6 item 20, effective 1 July 2009.

Primary carers in cases of shared care

36(8)
If a child is an FTB child of an individual and is also an FTB child of another individual who is not the individual ' s partner, the primary carer of the child is:

(a) if the individual who gave birth to the child has a percentage of care for the child of at least 48% - that individual; or

(b) if paragraph (a) does not apply, but one individual has a higher percentage of care for the child than anyone else - that individual; or

(c) if paragraphs (a) and (b) do not apply, but 2 individuals have an equal percentage of care for the child that is higher than anyone else ' s percentage of care for the child:

(i) if one of those individuals gave birth to the child - that individual; or

(ii) whichever of those individuals the Secretary decides is the primary carer of the child.

 View history note

 Hide history note

History

S 36(8) inserted by No 105 of 2010, s 3 and Sch 1 item 13, effective 1 January 2011.

SECTION 36A Effect of favourable review of payability determinations etc. for parental leave pay  
36A(1)
If:

(a) an individual would, but for this section, be eligible for baby bonus in respect of a child; and

(b) either:

(i) a payability determination (within the meaning of the Paid Parental Leave Act 2010 ) was made to the effect that parental leave pay is not payable for the child; or

(ii) a decision made under that Act, on review of another decision under that Act, has the effect that parental leave pay is not payable for the child; and

(c) a decision (the favourable review decision ) made under that Act on review of:

(i) the payability determination; or

(ii) the decision on review referred to in subparagraph (b)(ii);

has the effect that parental leave pay is payable for the child;

the individual is not, and is taken never to have been, eligible for baby bonus in respect of the child.

36A(2)
Despite subsection (1), if:

(a) the favourable review decision is made before the PPL period relating to the parental leave pay starts; and

(b) before that PPL period starts, a decision made under that Act, on review of the favourable review decision, has the effect that parental leave pay is not payable for the child;

this section does not affect, and is taken never to have affected, the individual ' s eligibility for baby bonus in respect of the child.

36A(3)
Despite subsection (1), if:

(a) the favourable review decision is made before the PPL period relating to the parental leave pay starts; and

(b) before that PPL period starts, the payability determination (as in force following the favourable review decision) is revoked under section 25 of that Act;

this section does not affect the individual ' s eligibility, after the determination is revoked, for baby bonus in respect of the child.

Note:

If this subsection applies, subsection 39(1A) of the Family Assistance Administration Act allows for an additional claim for payment of baby bonus in respect of the child.

SECTION 37 Generally only one individual eligible for baby bonus in respect of a child  
37(1)
Only one individual is eligible for baby bonus under subsection 36(2), (3) or (4) in respect of a child.

 View history note

 Hide history note

History

S 37(1) amended by No 63 of 2008, s 3 and Sch 2 item 39, by inserting " under subsection 36(2) , (3) or (4) " after " bonus " , effective 1 January 2009.

37(2)
If 2 or more individuals would otherwise be eligible for baby bonus under subsection 36(2) or (3) in respect of the same child, the individual who is eligible is the one determined by the Secretary to be eligible.

 View history note

 Hide history note

History

S 37(2) amended by No 105 of 2010, s 3 and Sch 1 item 15, by substituting " subsection 36(2) or (3) " for " subsection 36(2), (3), or (4) " , effective 1 January 2011.

S 37(2) amended by No 63 of 2008, s 3 and Sch 2 item 39, by inserting " under subsection 36(2) , (3) , or (4) " , effective 1 January 2009.

37(3)
However, if the Secretary is satisfied that it is reasonable that 2 or more of the individuals should be eligible for baby bonus under subsection 36(2) or (3) :

(a) each individual who is determined by the Secretary to be eligible is eligible; and

(b) the Secretary must determine the percentage that is to be each eligible individual's percentage of baby bonus in respect of the child.

 View history note

 Hide history note

History

S 37(3) amended by No 105 of 2010, s 3 and Sch 1 item 15, by substituting " subsection 36(2) or (3) " for " subsection 36(2), (3), or (4) " , effective 1 January 2011.

S 37(3) amended by No 63 of 2008, s 3 and Sch 2 item 40, by inserting " under subsection 36(2) , (3) or (4) " after " for baby bonus " , effective 1 January 2009.

37(4)
If the Secretary determines that an individual who is a member of a couple is eligible for baby bonus under subsection 36(2), (3), (4) or (5) in respect of a child, the Secretary must not determine that the partner of the individual is eligible for baby bonus in respect of that child.

 View history note

 Hide history note

History

S 37(4) amended by No 63 of 2008, s 3 and Sch 2 item 41, by inserting " under subsection 36(2) , (3) , (4) or (5) " after " couple is eligible for baby bonus " , effective 1 January 2009.

S 37 amended by No 82 of 2007, s 3 and Sch 6 item 16, by substituting " baby bonus " for " maternity payment " (wherever occurring), applicable to claims for payment of baby bonus made on or after 1 July 2007. If:

(a) a claim for payment of maternity payment is made before 1 July 2007; and

(b) the Secretary has not determined the claim by that time;

the claim is taken to be a claim for payment of baby bonus.

S 37 substituted by No 59 of 2004, s 3 and Sch 2 item 1, effective 1 July 2004. For application provision and former wording of s 37, see note under Div 2 heading.

Subdivision B - Eligibility of individuals for baby bonus where death occurs

SECTION 38 WHAT HAPPENS IF AN INDIVIDUAL ELIGIBLE FOR BABY BONUS DIES  
38
If:

(a) an individual is eligible for baby bonus (the subject payment ) in respect of a child; and

(b) the individual dies; and

(c) before the individual died, either:

(i) none of the subject payment had been paid to the individual (whether or not a claim had been made under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999) ; or

(ii) one or more amounts of the subject payment totalling less than the whole of the subject payment had been paid to the individual under subsection 47(1) , (2) or (3) of that Act; and

(d) another individual makes a claim under that Part for payment of baby bonus because of the death of the first-mentioned individual, stating that he or she wishes to become eligible for the subject payment; and

(e) the claim is made:

(i) within 52 weeks after the death; or

(ii) within a further period allowed by the Secretary in special circumstances; and

(f) the Secretary considers that the other individual ought to be eligible for the subject payment;

the other individual is eligible for the subject payment to the extent to which it was not paid to the first-mentioned individual. No-one else is, or can become, eligible for or entitled to be paid that payment.

Div 2 (heading) substituted by No 82 of 2007, s 3 and Sch 6 item 14, effective 1 July 2007.

The heading formerly read:

Division 2 - Eligibility for maternity payment

Div 2 substituted by No 59 of 2004, s 3 and Sch 2 item 1, effective 1 July 2004. No 59 of 2004, s 3 and Sch 2 item 3 contains the following application provision:

Div 2 formerly read:

Division 2 - Eligibility for maternity allowance

Subdivision A - Eligibility of individuals for maternity allowance in normal circumstances

SECTION 36 When an individual is eligible for maternity allowance in normal circumstances  
36(1)
An individual is eligible for maternity allowance in respect of a child in any of the 4 cases set out in this section.

Parent of child

36(2)
First, an individual is eligible for maternity allowance in respect of a child if:

(a) the individual is a parent of the child; and

(b) the individual is eligible for family tax benefit in respect of the child at any time within the period of 13 weeks starting on the day of the child's birth and the individual's Part A rate at that time is greater than nil.

Child entrusted to care of individual

36(3)
Second, an individual is eligible for maternity allowance in respect of a child if:

(a) the individual is not a parent of the child; and

(b) the child is entrusted to the care of the individual or the individual's partner within the period of 13 weeks starting on the day of the child's birth; and

(c) the child continues, or is likely to continue, in that care for not less than 13 weeks; and

(d) the individual is eligible for family tax benefit in respect of the child at any time within the period of 13 weeks starting on the day of the child's birth and the individual's Part A rate at that time is greater than nil.

Stillborn child

36(4)
Third, an individual is eligible for maternity allowance in respect of a child if:

(a) the child is a stillborn child; and

(b) the individual would have been eligible for family tax benefit in respect of the child, at any time within the period of 13 weeks starting on the day of the child's birth, if the child had not been a stillborn child and the individual's Part A rate at that time would have been greater than nil.

Adoption

36(5)
Fourth, an individual is eligible for maternity allowance in respect of a child if:

(a) as part of the process for the adoption of the child by the individual, the child is entrusted to the care of the individual by an authorised party; and

(b) the child is not more than 26 weeks of age at the time the child is entrusted to the care of the individual; and

(c) the individual is eligible for family tax benefit in respect of the child at any time within the period of 13 weeks starting on the day the child is entrusted to the care of the individual and the individual's Part A rate at that time is greater than nil.
SECTION 37 Only one individual eligible for maternity allowance in respect of a child  
37(1)
Only one individual is eligible for maternity allowance in respect of a child.

37(2)
If 2 or more individuals would otherwise be eligible for maternity allowance in respect of the same child, the individual who is eligible is the one determined by the Secretary to be eligible.

Subdivision B - Eligibility of individuals for maternity allowance where death occurs

SECTION 38 What happens if an individual eligible for maternity allowance dies  
38
If:

(a) an individual is eligible for maternity allowance (the subject allowance ) in respect of a child; and

(b) the individual dies; and

(c) before the individual died, the subject allowance had not been paid to the individual (whether or not a claim under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 had been made); and

(d) another individual makes a claim under that Part for payment of maternity allowance because of the death of the first-mentioned individual, stating that he or she wishes to become eligible for the subject allowance; and

(da) the claim is made:

(i) within 26 weeks after the death; or

(ii) within a further period allowed by the Secretary in special circumstances; and

(e) the Secretary considers that the other individual ought to be eligible for the subject allowance;

the other individual is eligible for the subject allowance and no-one else is, or can become, eligible for or entitled to be paid that allowance.

S 38 amended by No 30 of 2003, s 3 and Sch 2 items 6 and 7, by substituting " the first-mentioned individual " for " a person " in para (d) and inserting para (da), effective 15 April 2003.

Subdiv A substituted by No 70 of 2013, s 3 and Sch 2A item 21, effective 1 March 2014. For application and transitional provisions, see note under Sch 1 Pt 5 Div 1A . For the former wording of Subdiv A, see note under Div 2 heading.

Subdiv A (heading) substituted by No 82 of 2007, s 3 and Sch 6 item 15, effective 1 July 2007.

The heading formerly read:

Subdivision A - Eligibility of individuals for maternity payment in normal circumstances

Subdiv A substituted by No 59 of 2004, s 3 and Sch 2 item 1, effective 1 July 2004. For application provision and former wording of Subdiv A, see note under Div 2 heading.

S 37 substituted by No 70 of 2013, s 3 and Sch 2A item 21, effective 1 March 2014. For application and transitional provisions, see note under Sch 1 Pt 5 Div 1A . For the former wording of s 37, see note under Div 2 heading.

S 37(4) amended by No 63 of 2008, s 3 and Sch 2 item 41, by inserting " under subsection 36(2) , (3) , (4) or (5) " after " couple is eligible for baby bonus " , effective 1 January 2009.

S 37 amended by No 82 of 2007, s 3 and Sch 6 item 16, by substituting " baby bonus " for " maternity payment " (wherever occurring), applicable to claims for payment of baby bonus made on or after 1 July 2007. If:

(a) a claim for payment of maternity payment is made before 1 July 2007; and

(b) the Secretary has not determined the claim by that time;

S 37 substituted by No 59 of 2004, s 3 and Sch 2 item 1, effective 1 July 2004. For application provision and former wording of s 37, see note under Div 2 heading.