Commonwealth Consolidated Acts

A NEW TAX SYSTEM (FAMILY ASSISTANCE) ACT 1999 - SECT 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 18

             (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.

             (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.

             (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.

Individual aged 18‑20

             (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.

Individual aged 21‑24 undertaking full‑time study

             (6)  The individual is an FTB child of the adult if:

                     (a)  the individual has turned 21 but is aged under 25; 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.

Determining percentages of care

          (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), (5) 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.

          (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.

          (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.

          (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.

Percentage of care at least 35%

             (7)  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, 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 the Secretary determines that a child was, or will be, in the care of an individual for less than 35% of a period, the child is taken not to be an FTB child (see section 25).