5.12.5 Subsection 80(3) - Children born alive after but conceived before and adopted children

Subsection 80(3) provides that additional amounts of compensation are also payable in respect of children:

1. born alive on, or after, the relevant date, but who were conceived before that time; or
2. adopted on, or after, the relevant date, but who’s adoption proceedings began before that time.

Example 1

The delegate determines the relevant date for the purposes of subsection 80(2) is 30 January 2019. The veteran provides evidence confirming their child was born on 1 March 2019. In this example, it is open to the delegate to determine the child, whilst born after the relevant date, was conceived around nine months earlier in June 2018, and therefore before the relevant date. In this example, subsection 80(3) applies and an additional amount of compensation is payable in respect of that child.

Example 2

The delegate determines the relevant date for the purposes of subsection 80(2) is 30 March 2021.  The veteran provides evidence confirming their child was born on 30 December 2021. In this example, due to the closeness of the possible date of conception to the relevant date, the delegate decides to seek additional information from the veteran to confirm the conception date of the child. The veteran provides clinical notes from his partner’s medical practitioner, confirming the conception date of the child was in April 2021. In this example, it is open to the delegate to determine that an additional amount of compensation is not payable in respect of the child, as whilst the child was born after the relevant date, the child was not conceived before, and therefore subsection 80(3)(a) is not satisfied.

Example 3

The delegate determines the relevant date for the purposes of subsection 80(2) is 1 March 2022. The veteran provides evidence confirming they adopted a 2 year-old child and the adoption certificate confirms this occurred on 30 November 2022. The veteran also provides evidence confirming that formal adoption proceedings commenced in January 2021. In this example, subsection 80(3)(b) applies and it is open to the delegate to determine that an additional amount of compensation is payable in respect of the adopted child, as whilst the child was adopted after the relevant date, the adoption proceedings commenced before that date.

Note: Please also see chapter 5.12.6 for guidance regarding children conceived and born through the In-vitro Fertilisation (IVF) process.