5Family relationships definitions—children

#### 5 Family relationships definitions—children (1) In this Act, unless the contrary intention appears: > adopted child means a young person adopted under the law of any place, whether in Australia or not, relating to the adoption of children. > child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975. > dependent child has the meaning given by subsections (2) to (8A). > independent, in Parts 2.11, 2.11B, 3.4A, 3.4B, 3.5 and 3.7, has the meaning given in section 1067A. > main supporter of a secondary pupil child has the meaning given by section 5G. > parent means: (a) (except in Part 2.11, section 592L, subsection 1067A(10L) and the Youth Allowance Rate Calculator in section 1067G): (i) in relation to a person (the relevant person), other than an adopted child—a natural parent or relationship parent of the relevant person; or (ii) in relation to an adopted child—an adoptive parent of the child; or (b) in Part 2.11, section 592L, subsection 1067A(10L) and the Youth Allowance Rate Calculator in section 1067G, in relation to a person (relevant person): (i) a natural parent, adoptive parent or relationship parent of the relevant person with whom the relevant person normally lives; or (ii) if a parent referred to in subparagraph (b)(i) is a member of a couple and normally lives with the other member of the couple—the other member of the couple; or (iii) any other person (other than the relevant person’s partner) on whom the relevant person is wholly or substantially dependent; or (iv) if none of the preceding paragraphs applies—the natural parent, adoptive parent or relationship parent of the relevant person with whom the relevant person last lived. > prescribed educational scheme means: (b) the ABSTUDY Scheme; or (ca) a Student Financial Supplement Scheme; or (e) the Veterans’ Children Education Scheme; or (ea) the scheme to provide education and training under section 258 of the Military Rehabilitation and Compensation Act; or (f) the Post‑Graduate Awards Scheme. > Note: For paragraph (ca), an application under the Student Financial Supplement Scheme cannot be made in respect of a year, or a part of a year, that begins on or after the day on which the Student Assistance Legislation Amendment Act 2006 receives the Royal Assent (see subsection 1061ZY(2)). > prescribed student child has the meaning given by subsection (11). > principal carer, of a child, has the meaning given by subsections (15) to (24). > relationship child has the meaning given by subsection (25). > relationship parent has the meaning given by subsection (25). > secondary pupil child has the meaning given by section 5F. > step‑child: without limiting who is a step‑child of a person for the purposes of this Act, someone who is a child of a partner of the person is the step‑child of the person, if he or she would be the person’s step‑child except that the person is not legally married to the partner. > step‑parent: without limiting who is a step‑parent of a person for the purposes of this Act, someone who is a partner of a parent of the person is the step‑parent of the person, if he or she would be the person’s step‑parent except that he or she is not legally married to the person’s parent. > student child has the meaning given by subsection (1A). > young person: (a) except in Part 2.20—has the meaning given by subsection (1B) of this section; and (b) in Part 2.20—means a person who is under 20 years of age. (1A) A person is a student child at a particular time if: (a) at the time, the person: (i) has reached 16, but is under 22, years of age; and (ii) is receiving full‑time education at a school, college or university; and (b) the person’s income in the financial year in which that time occurs will not be more than $6,403. (1B) A person is a young person at a particular time if at that time the person: (a) is under 16 years of age; or (b) is a student child. Dependent child—under 16 (2) Subject to subsections (3) and (6) to (8), a young person who has not turned 16 is a dependent child of another person (in this subsection called the adult) if: (a) the adult is legally responsible (whether alone or jointly with another person) for the day‑to‑day care, welfare and development of the young person, and the young person is in the adult’s care; or (b) the young person: (i) is not a dependent child of someone else under paragraph (a) or (aa); and (ii) is wholly or substantially in the adult’s care. > Note: For paragraph (a), see also subsection (16). (3) A young person who has not turned 16 cannot be a dependent child if: (a) the young person is not in full‑time education; and (b) the young person is in receipt of income; and (c) the rate of that income exceeds $107.70 per week. > Note: The amount in paragraph (c) is indexed annually in line with CPI increases (see sections 1191 to 1194). Dependent child—16 to 21 years of age (4) Subject to subsections (5) to (8), a young person is a dependent child of another person at a particular time if: (a) at that time, the young person: (i) has reached 16, but is under 22, years of age; and (ii) is wholly or substantially dependent on the other person; and (b) the young person’s income in the financial year in which that time occurs will not be more than $6,403. (5) A young person who has turned 16 cannot be a dependent child of another person if the other person is the young person’s partner. Dependent child—pension, benefit and Labour Market Program recipients (6) A young person cannot be a dependent child for the purposes of this Act if: (a) the young person is receiving a social security pension; or (b) the young person is receiving a social security benefit; or (c) the young person is receiving payments under a program included in the programs known as Labour Market Programs. Dependent child—residence requirements (7) For the purposes of this Act (other than the provisions dealing with special benefit), a young person is not to be treated as a dependent child of another person (in this subsection called the adult) unless: (a) if the adult is an Australian resident: (i) the young person is an Australian resident; or (ii) the young person is living with the adult; or (b) if the adult is not an Australian resident: (i) the young person is an Australian resident; or (ii) the young person has been an Australian resident and is living with the adult outside Australia; or (iii) the young person had been living with the adult in Australia and is living with the adult outside Australia. > Note: For Australian resident see subsection 7(2). (8) For the purposes of working out the maximum rate of special benefit under subsection 746(2), a young person is not to be treated as a dependent child of another person (in this subsection called the adult) unless: (a) if the adult is an Australian resident: (i) the young person is an Australian resident or a resident of Australia; or (ii) the young person is living with the adult; or (b) if the adult is not an Australian resident—the young person is an Australian resident or a resident of Australia. > Note: Australian resident is defined by subsection 7(2) but resident of Australia has its ordinary meaning and is not given any special definition by this Act. Subsection 7(3) is relevant to the question of whether a person is residing in Australia. (8A) For the purposes of Part 2.10, a young person who is an inmate of a mental hospital is a dependent child of a member of a couple if there is in force under section 37 a determination in respect of the young person and the member of the couple. Prescribed student child (11) A person is a prescribed student child if: (a) the person is a young person who has reached 16, but is under 22, years of age; and (b) the young person is qualified to receive payments under a prescribed educational scheme. (12) For the purposes of subsection (11), a young person is, subject to subsection (13), qualified to receive a payment under a prescribed educational scheme if: (a) the young person is receiving a payment under a prescribed educational scheme; or (b) someone else is receiving, in respect of the young person, a payment under a prescribed educational scheme; or (c) the Secretary has not formed the opinion that: (i) the young person will not, or would not if an application were duly made, receive a payment under a prescribed educational scheme; and (ii) no other person will, or would if an application were duly made, receive, in respect of the young person, a payment under a prescribed educational scheme. (13) For the purposes of subsection (11), a young person is not qualified to receive a payment under a prescribed educational scheme if: (a) the young person is not receiving a payment under a prescribed educational scheme; and (b) no other person is receiving, in respect of the young person, a payment under a prescribed educational scheme; and (c) the Secretary is satisfied that the educational scheme rate would be less than the social security rate. (14) For the purposes of subsection (13): (a) the educational scheme rate is the total of the amounts that would be payable to or in respect of the young person under the prescribed educational scheme; and (b) the social security rate is the Part A rate of family tax benefit for which a person would be eligible (in respect of the young person) if the young person were not a prescribed student child. Principal carer (15) A person is the principal carer of a child if: (a) the child is a dependent child of the person; and (b) the child has not turned 16. > Note: The definition of dependent child in subsection (2) requires: (a) the adult to be legally responsible (whether alone or jointly with another person) for the day‑to‑day care, welfare and development of the child: subsection (16) deals with the circumstances in which a step‑parent is taken to have such legal responsibility; and (b) a child to be in an adult’s care: subsection (17) deals with the circumstances in which a child is taken to remain in an adult’s care. (16) For the purpose of determining whether a person is the principal carer of a child, the person is taken to be legally responsible (whether alone or jointly with another person) for the day‑to‑day care, welfare and development of the child if: (a) the person is the step‑parent of the child; and (b) the person is living with the child and a parent of the child; and (c) the person and the parent are members of the same couple. This subsection does not, by implication, affect the determination of whether a person is taken to be legally responsible (whether alone or jointly with another person) for the day‑to‑day care, welfare and development of a child in cases to which this subsection does not apply. (17) For the purpose of determining whether a person is the principal carer of a child, the child is taken to remain in the person’s care if: (a) at the start of a period not exceeding 8 weeks, the child leaves the person’s care; and (b) throughout the period, the child is the dependent child of another person; and (c) the child returns, or the Secretary is satisfied that the child will return, to the first person’s care at the end of the period. This subsection does not, by implication, affect the determination of whether a child is in the care of a person in cases to which this subsection does not apply (for example, if the period exceeds 8 weeks). Principal carer—a child can only have one principal carer (18) Only one person at a time can be the principal carer of a particular child. (19) If the Secretary is satisfied that, but for subsection (18), 2 or more persons (adults) would be principal carers of the same child, the Secretary must: (a) make a written determination specifying one of the adults as the principal carer of the child; and (b) give a copy of the determination to each adult. (20) The Secretary may make the determination even if all the adults have not claimed a social security payment that is based on, or would be affected by, the adult being the principal carer of the child. Principal carer—which member of a couple can be a principal carer (20A) Subject to subsection (20B), a person is not the principal carer of any child if: (a) the person is a member of a couple; and (b) the other member of the couple is, or apart from this subsection would be, the principal carer of one or more children; and (c) the other member of the couple is receiving parenting payment, youth allowance, jobseeker payment or special benefit; and (d) the payment, allowance or benefit is based on or affected by the other member of the couple being the principal carer of a child. (20B) If: (a) a member of a couple is receiving, or has made a claim for, a social security payment that is or would be based on or affected by the person being the principal carer of a child; and (b) the other member of the couple is receiving, or has made a claim for, a social security payment that is or would be based on or affected by the person being the principal carer of a child; and (c) apart from subsection (20C), the application of subsection (20A) would, or would if the claim or claims were granted, prevent each member of the couple from being the principal carer of any child; the Secretary must determine in writing that one of them can be a principal carer of a child. (20C) The determination has effect accordingly, despite subsection (20A). (20D) The Secretary must give a copy of the determination to each member of the couple. Principal carer—child absent from Australia (21) If a child: (a) leaves Australia temporarily; and (b) continues to be absent from Australia for more than 6 weeks; a person cannot be the principal carer of the child at any time after the 6 weeks while the child remains absent from Australia unless, at that time: (c) the child is in the company of a person to whom Division 2 of Part 4.2 applies; and (d) but for this subsection, the person would be the principal carer of the child; and (e) the person’s portability period (within the meaning of that Division) for a social security payment: (i) that the person was receiving immediately before the person’s absence from Australia; or (ii) the person’s claim for which was granted during the absence; has not ended. (22) For the purposes of subsection (21), in determining if an absence is temporary, regard must be had to the following factors: (a) the purpose of the absence; (b) the intended duration of the absence; (c) the frequency of such absences. (23) If a child: (a) is born outside Australia; and (b) continues to be absent from Australia for a period of more than 6 weeks immediately following the child’s birth; a person cannot be the principal carer of the child at any time after the 6 weeks while the child remains absent from Australia unless, at that time: (c) the child is in the company of a person to whom Division 2 of Part 4.2 applies; and (d) but for this subsection, the person would be the principal carer of the child; and (e) the person’s portability period (within the meaning of that Division) for a social security payment: (i) that the person was receiving immediately before the person’s absence from Australia; or (ii) the person’s claim for which was granted during the absence; has not ended. (24) If: (a) a person is not the principal carer of a child because of subsection (21) (absence from Australia) or (23) (birth outside Australia), or because of a previous application of this subsection; and (b) the child comes to Australia; and (c) the child leaves Australia less than 6 weeks later; a person cannot be the principal carer of the child when the child leaves Australia as mentioned in paragraph (c). Relationship child and relationship parent (25) If: (a) someone is a child of a person because of: (i) the definition of child in subsection (1); or (ii) paragraph (b) of the definition of child in section 1207A; or (iii) paragraph (b) of the definition of child in subsection 1209R(5); and (b) he or she is not a biological or adopted child of the person; the child is the relationship child of the person and the person is the relationship parent of the child.