Who is considered the Primary Carer for the Purpose of Parental Leave?

The primary carer of an adoptive or newborn child under 18 is eligible for 18 weeks of paid leave under the Paid Parental Leave scheme. Partners or secondary carers are eligible for a shorter amount of leave, 2 weeks for working dads and partners under the Paid Parental Leave scheme.

Defining who the primary carer is not necessarily clear-cut. The Fair Work Commission have recently made it clearer to define when an employee will be considered the primary carer.

According to the Fair Work Commission, a newborn baby’s mother must be deemed incapable of providing primary care after the child’s birth for the partner to be eligible to claim primary carer status. Looking after the mother after birth does not make a partner a primary carer.

In a recent case, two male employees claimed they took on the primary carer role after their partners delivered their baby’s via caesarean. Due to the fact that the mothers could not bend to lift the baby up or drive a car, they claimed that they were entitled to Paid Parental Leave as they were the primary carers.

DP Asbury reviewed the employees' statutory declaration (a requirement of the enterprise agreement) and medical certificates and concluded the fathers were not acting as primary carers for their babies but were acting as carers for their partners. Therefore they were not entitled to Paid Parental Leave as primary carers and the employees’ personal leave was the correct leave to use in this occurrence.

However the Fair Work Commission could not necessarily rule out certain medical procedures from being accepted as adequate proof of incapacity. DP Asbury found that the medical condition of the mother “must be such that she is unable to provide primary care for the child” for her partner to be able to make a claim for primary carer status.

A partner is able to claim primary carer status under exceptional circumstances. If the birth mother or the initial primary carer of an adopted child is unable to care for the child, a partner or another person may claim Parental Leave Pay.

The person claiming under exceptional circumstances would need to meet the eligibility criteria and presume to be caring for the child for at least a period of 26 weeks. The change of care must take place within 52 weeks of the child’s birth or adoption.

A mother returning to work full time or being incapable of caring for the baby due to a serious medical condition would allow for a partner to claim paid parental leave as they would be considered primary carer.

In this particular case, a caesarean was not considered a sufficient medical condition.