PART 3
-
ELIGIBILITY FOR FAMILY ASSISTANCE (OTHER THAN CHILD CARE SUBSIDY AND ADDITIONAL CHILD CARE SUBSIDY)
History
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
Division 1
-
Eligibility for family tax benefit
Subdivision A
-
Eligibility of individuals for family tax benefit in normal circumstances
SECTION 22
When an individual is an FTB child of another individual
22(1)
An individual is an
FTB child
of another individual (the
adult
) in any of the cases set out in this section.
Individual aged under 16
22(2)
An individual is an
FTB child
of the adult if:
(a)
the individual is aged under 16; and
(b)
the individual is in the adult
'
s care; and
(c)
the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and
(d)
the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c).
History
S 22(2) substituted by No 129 of 2009, s 3 and Sch 1 item 5, effective 1 January 2010. For application and transitional provisions, see note under s
17B
. S 22(2) formerly read:
Individual aged under 18
22(2)
The individual is an
FTB child
of the adult if:
(a)
the individual is aged under 18; and
(b)
the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; and
(c)
the individual is in the adult
'
s care; and
(d)
the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.
S 22(2) amended by No 18 of 2001, s 3 and Sch 2 item 5, by inserting
"
, is a special category visa holder residing in Australia
"
after
"
resident
'
'
in para (d), effective 30 March 2001.
Individual aged 16-17
22(3)
An individual is an
FTB child
of the adult if:
(a)
the individual has turned 16 but is aged under 18; and
(b)
the individual is in the adult
'
s care; and
(c)
the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and
(d)
the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c); and
(e)
the individual is a senior secondary school child.
History
S 22(3) amended by No 14 of 2014, s 3 and Sch 3 item 4, by substituting para (e), effective 1 May 2014. For application and saving provisions see note under s
17B
. Para (e) formerly read:
(e)
the individual satisfies or is exempt from the FTB activity test.
S 22(3) substituted by No 129 of 2009, s 3 and Sch 1 item 5, effective 1 January 2010. For application and transitional provisions, see note under s
17B
. S 22(3) formerly read:
22(3)
The individual is an
FTB child
of the adult if:
(a)
the individual is aged under 18; and
(b)
a family law order, registered parenting plan or parenting plan is in force in relation to the individual; and
(c)
under the order or plan, the adult is someone with whom the individual is supposed to live or someone with whom the individual is supposed to spend time; and
(d)
the individual is in the adult
'
s care; and
(e)
the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.
S 22(3) amended by No 82 of 2006, s 3 and Sch 12 item 2, by substituting
"
spend time
"
for
"
have contact
"
in para (c), effective 1 July 2006.
S 22(3) amended by No 146 of 2006, s 3 and Sch 8 item 14, by substituting
"
, registered parenting plan or parenting plan
"
for
"
or registered parenting plan
"
in para (b), effective 1 July 2008.
S 22(3) amended by No 18 of 2000, s 3 and Sch 2 item 6, by inserting
"
, is a special category visa holder residing in Australia
"
after
"
resident
'
'
in para (e), effective 30 March 2001.
S 22(3) amended by No 45 of 2000, s 3 Sch 1 item 2 by repealing the second sentence. For transitional provisions see note under s 22A. The second sentence formerly read:
While the individual is an FTB child of the adult under this subsection, the individual cannot be an FTB child of anyone else.
Individual aged 18-19
22(4)
An individual is an
FTB child
of the adult if:
(a)
the individual is aged 18 or is aged 19 and the calendar year in which the individual turned 19 has not ended; and
(b)
the individual is in the adult
'
s care; and
(c)
the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and
(d)
the individual is a senior secondary school child.
History
S 22(4) amended by No 98 of 2012, s 3 and Sch 3 items 2
-
3, by substituting para (a) and (d), effective 1 January 2013. No 98 of 2012, s 3 and Sch 3 item 17 contains the following application provisions:
Application provisions
17(1)
The amendments made by items 1 to 12 and 14 to 16 apply for the purposes of working out eligibility for family tax benefit, and how much family tax benefit is payable, for a day that is on or after 1 January 2013.
17(2)
The amendments made by items 1 to 4 and 7 and 8 also apply for the purposes of working out eligibility for single income family supplement, and how much single income family supplement is payable, for a day that is on or after 1 January 2013.
17(3)
The amendments made by items 1 to 4 and 7 and 8 also apply for the purposes of working out eligibility for child care benefit, and how much child care benefit is payable, in respect of care provided to a child by an approved child care service or a registered carer on or after 1 January 2013.
17(4)
Subitem (1) applies, in relation to the amendments made by items 5 and 9, whether the child died before, on or after 1 January 2013.
17(5)
The amendment made by item 13 applies in relation to the indexation day that is 1 July 2013 and all later indexation days.
Para (a) and (d) formerly read:
(a)
the individual has turned 18 but is aged under 21; and
(d)
the individual satisfies or is exempt from the FTB activity test.
S 22(4) substituted by No 129 of 2009, s 3 and Sch 1 item 5, effective 1 January 2010. For application and transitional provisions, see note under s
17B
. S 22(4) formerly read:
22(4)
The individual is an
FTB child
of the adult if:
(a)
the individual is aged under 18; and
(b)
the individual is in the adult
'
s care; and
(c)
the individual is not in the care of anyone with the legal responsibility for the day-to-day care, welfare and development of the individual; and
(d)
the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.
S 22(4) amended by No 18 of 2001, s 3 and Sch 2 item 7, by inserting
"
, is a special category visa holder residing in Australia
"
after
"
resident
'
'
in para (d), effective 2001.
Legal responsibility for the individual
22(5)
The circumstances surrounding legal responsibility for the care of the individual are:
(a)
the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; or
(b)
under a family law order, registered parenting plan or parenting plan in force in relation to the individual, the adult is someone with whom the individual is supposed to live or spend time; or
(c)
the individual is not in the care of anyone with the legal responsibility for the day-to-day care, welfare and development of the individual.
History
S 22(5) substituted by No 129 of 2009, s 3 and Sch 1 item 5, effective 1 January 2010. For application and transitional provisions, see note under s
17B
. S 22(5) formerly read:
Individual aged 18-20
22(5)
The individual is an
FTB child
of the adult if:
(a)
the individual has turned 18 but is aged under 21; and
(b)
the individual is in the adult
'
s care; and
(c)
the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.
S 22(5) amended by No 18 of 2001, s 3 and Sch 2 item 8, by inserting
"
, is a special category visa holder residing in Australia
"
after
"
resident
'
'
in para (c), effective 30 March 2001.
22(6)
(Repealed by No 98 of 2012)
History
S 22(6) repealed by No 98 of 2012, s 3 and Sch 3 item 4, effective 1 January 2013. For application provisions see note under s
22(4)
. S 22(6) formerly read:
Individual aged 21 undertaking full-time study or is studying overseas full-time
22(6)
The individual is an
FTB child
of the adult if:
(a)
the individual is aged 21; and
(b)
the individual is in the adult
'
s care; and
(c)
the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and
(d)
the individual is undertaking full-time study or is studying overseas full-time.
S 22(6) amended by No 52 of 2011 (as amended by No 98 of 2012), s 3 and Sch 1 item 1, by substituting
"
is aged 21
"
for
"
has turned 21 but is aged under 25
"
in para (a), applicable for the purposes of working out whether family tax benefit, and how much family tax benefit, is payable for a day that is on or after 1 January 2012.
S 22(6) amended by No 34 of 2011, s 3 and Sch 5 item 7, by inserting
"
or is studying overseas full-time
"
at the end of para (d), applicable in relation to working out an individual
'
s or approved care organisation
'
s entitlement (if any) to family tax benefit in respect of days occurring on or after 26 May 2011.
S 22(6) amended by No 18 of 2001, s 3 and Sch 2 item 9, by inserting
"
, is a special category visa holder residing in Australia
"
after
"
resident
'
'
in para (c), effective 30 March 2001.
22(6A)
(Repealed by No 65 of 2010)
History
S 22(6A) repealed by No 65 of 2010, s 3 and Sch 2 item 12, effective 1 July 2010. For application provisions see note under Pt 3 Div 1 Subdiv
D
heading. S 22(6A) formerly read:
Determining percentages of care
22(6A)
If:
(a)
the Secretary is satisfied there has been, or will be, a pattern of care for an individual (the
child
) over a period such that, for the whole, or for parts (including different parts), of the period, the child was, or will be, under subsection (2), (3), (4) or (6) an FTB child of more than one other individual; and
(b)
one of those other individuals makes, or has made, a claim under Part
3
of the
A New Tax System (Family Assistance) (Administration) Act 1999
for payment of family tax benefit in respect of the child for some or all of the days in that period; and
(c)
that individual is not a partner of at least one of those other individuals;
then the Secretary must determine the percentage of the period during which the child was, or will be, in the care of that individual.
Note:
The percentage determined under subsection (6A) for an individual in respect of a child is used to work out the individual
'
s shared care percentage for the child in section
59
.
S 22(6A) amended by No 129 of 2009, s 3 and Sch 1 item 6, by omitting
"
, (5)
"
after
"
, (4)
"
in para (a), effective 1 January 2010. For application and transitional provisions, see note under s
17B
.
S 22(6A) inserted by No 146 of 2006, s 3 and Sch 8 item 15, effective 1 July 2008.
22(6B)
(Repealed by No 65 of 2010)
History
S 22(6B) repealed by No 65 of 2010, s 3 and Sch 2 item 12, effective 1 July 2010. For application provisions see note under Pt 3 Div 1 Subdiv
D
heading. S 22(6B) formerly read:
22(6B)
If the percentage determined by the Secretary under subsection (6A) is not a whole percentage:
(a)
if the percentage is greater than 50%
-
the percentage is rounded up to the nearest whole percentage; and
(b)
if the percentage is less than 50%
-
the percentage is rounded down to the nearest whole percentage.
S 22(6B) inserted by No 146 of 2006, s 3 and Sch 8 item 15, effective 1 July 2008.
22(6C)
(Repealed by No 65 of 2010)
History
S 22(6C) repealed by No 65 of 2010, s 3 and Sch 2 item 12, effective 1 July 2010. For application provisions see note under Pt 3 Div 1 Subdiv
D
heading. S 22(6C) formerly read:
22(6C)
For the purposes of subsection (6A), a child cannot be in the care of more than one of the other individuals referred to in paragraph (6A)(a) on any particular day.
S 22(6C) inserted by No 146 of 2006, s 3 and Sch 8 item 15, effective 1 July 2008.
22(6D)
(Repealed by No 65 of 2010)
History
S 22(6D) repealed by No 65 of 2010, s 3 and Sch 2 item 12, effective 1 July 2010. For application provisions see note under Pt 3 Div 1 Subdiv
D
heading. S 22(6D) formerly read:
22(6D)
For the purposes of subsection (6A), the Secretary must determine which of the other individuals referred to in paragraph (6A)(a) has the care of the child on any given day having regard to the living arrangements of the child.
S 22(6D) inserted by No 146 of 2006, s 3 and Sch 8 item 15, effective 1 July 2008.
Percentage of care at least 35%
22(7)
If an individual
'
s percentage of care for a child during a care period is at least 35%, the child is taken to be an FTB child of that individual for the purposes of this section on each day in that period, whether or not the child was in that individual
'
s care on that day.
Note:
If an individual
'
s percentage of care for a child during a care period is less than 35%, the child is taken not to be an FTB child (see section
25
).
History
S 22(7) amended by No 65 of 2010, s 3 and Sch 2 items 13 and 14, by substituting
"
If an individual
'
s percentage of care for a child during a care period is at least 35%
"
for
"
If, under subsection (6A), the Secretary determines that a child was, or will be, in the care of an individual for at least 35% of a period
"
and substituting
"
If an individual
'
s percentage of care for a child during a care period is less than 35%
"
for
"
If the Secretary determines that a child was, or will be, in the care of an individual for less than 35% of a period
"
in the note, effective 1 July 2010. For application provisions see note under Pt 3 Div 1 Subdiv
D
heading.
S 22(7) substituted by No 146 of 2006, s 3 and Sch 8 item 16, effective 1 July 2008. S 22(7) formerly read:
Exceptions
22(7)
If:
(a)
the Secretary is satisfied there has been, or will be, a pattern of care for an individual (the
child
) over a period such that, for the whole, or for parts (including different parts), of the period, the child was, or will be, an FTB child of more than one other individual under subsection (2), (3), (4), (5) or (6); and
(b)
one of those other individuals makes, or has made, a claim under Part 3 of the
A New Tax System (Family Assistance) (Administration) Act 1999
for payment of family tax benefit in respect of the child for some or all of the days in that period; and
(c)
subsection 25(1), (1A) or (1B) does not require that the child be taken not to be an FTB child of that individual for any part of that period;
the child is to be taken to be an FTB child of that individual for the purposes of this section on each day in that period, whether or not the child was in that individual
'
s care on that day.
22(8)
(Repealed by No 45 of 2000)
History
S 22(8) repealed by No 45 of 2000, s 3 Sch 1 item 3. For transitional provisions see note under s 22A. S 22(8) formerly read:
Definition
22(8)
In subsection (7):
cut-out amount
means the sum of:
(a)
the amount specified in column 2 of item 2 of the table in clause
30
of Schedule 1 divided by 0.3; and
(b)
the amount specified in clause
33
of that Schedule.
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