2.1.3 Who is a child under VCES?

As of 1 July 2009, the definitions of dependants under the VEA were amended so that terms relating to dependants extend to include same sex relationships.  The Same Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 (Same Sex Act) removed differential treatment of same sex couples and their children from Commonwealth legislation, including the VEA.

Section 10(1) of the VEA defines a child of a veteran or other person as:

(a)a child of the veteran or an adopted child of the veteran; or

(b)a child who is a child of the veteran within the meaning of the Family Law Act 1975; or

(c)any other child who is, or was immediately before the death of the veteran, wholly or substantially dependent on the veteran.

Additionally, where a veteran is obliged by law to maintain a child, that child is deemed to be wholly or substantially dependent on the veteran (section 10(3) VEA).

Where the veteran or member is a step parent, in a de facto relationship with the child's parent, or is a guardian of the child, additional documentation may be required to establish eligibility.

Suitable evidence could take the form of a statutory declaration by the veteran or applicant, a guardianship order, evidence of payment by Centrelink of Family Tax Benefit (FTB) to the veteran or veteran's spouse on behalf of the child, a custody order etc.

Step children under VCES

Under s116 of the VEA, a person must be a 'child of an eligible veteran to receive VCES benefits.  s10 of the VEA outlines who is a “child of a veteran”.  S10(c) of the VEA requires the child to be “any other child who is, or was immediately before the death of the veteran, wholly or substantially dependent on the veteran.”

Therefore, if a veteran has a step-child and the couple separate, the child only retains eligibility for VCES benefits if he or she remains wholly or substantially dependent (this refers to economic dependency) on the veteran.  The Secretary would need evidence to prove that the child continues to be wholly or substantially dependent.  This may take the form of information about child support payments, etc.

A child who is the child or adopted child of the veteran will continue to be eligible to receive VCES benefits after the parents separate (see s10(1)(a) and (b)).  There is no need for this child to establish that he or she is wholly or substantially dependent on the veteran.

Step children of de facto relationships

Under the MRCA and VEA, a step child of a de facto or same sex relationship is to be treated the same way as a step child of a married relationship (see the definition of 'step child' which was added to the definitions section of the Acts in 2009).