13.2.1.1 Who is a ‘child’ under the VEA?
An ‘eligible child’ under s 116 of the VEA, must be the child of a veteran or a present or past member of the ADF.
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.
As of 1 July 2009, the definition of a child under the VEA and the MRCA 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 and the MRCA.
Biological or adopted child of a veteran
A child or adopted child of a veteran under sections 10(1)(a) and (b) of the VEA will be eligible for VCES benefits regardless of dependency on the veteran.
Child wholly or substantially dependant on the veteran
Under section 10(1)(c), a child will also be considered to be a ‘child of an eligible veteran’ and eligible for VCES benefits where the child is wholly or substantially dependent on the veteran, including step children.
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). An example could be a veteran who is a grandparent and has custodial care of that child.
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
To be eligible for VCES benefits, a step child must satisfy the definition in section 10(1)(c) of the VEA, which requires the child to be 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 Education 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 section 10(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).