This topic provides information about the residence requirements for family assistance and includes the following:
To be eligible for FTB, baby bonus and CCB, an individual must be an Australian resident (1.1.A.130) or an SCV (1.1.V.10) holder (New Zealand citizen) residing in Australia, unless the exceptions given below in this topic apply.
For an individual to be an FTB child they must also be an Australian resident or an SCV holder residing in Australia or they must live with an adult who meets the requirements.
To be an Australian resident the individual must not only have the right to live in Australia permanently, they must also be residing in Australia. An Australian citizen who lives overseas permanently, or indefinitely, is generally not considered to be an Australian resident for FA purposes because they do not intend to live in Australia permanently.
As a result of changes to the Social Security Act 1991 on 26 February 2001, SCV holders (those travelling on a New Zealand passport) who arrived after that date no longer meet the definition of Australian resident for social security payments unless they were assessed as having protected SCV status. Regardless of this change, SCV holders will continue to fulfil the residence requirements for FTB, baby bonus and CCB if they are regarded as residing in Australia.
In deciding whether a child is 'living with' the adult for the purposes of the residence requirements, the ordinary meaning of 'living' should be used, that is, residing, dwelling or occupying a place as a domicile. The period of time that the child has been staying with the adult may also be considered. A short period of staying with the child is not likely to constitute living with the adult.
In deciding whether an adult who is temporarily absent from the child is still living with the child, the decision maker should consider whether the child and the adult still share the same home. If the adult has gone away on a business trip, a holiday or to visit family, generally the adult's home would still be the same as the child's. Generally, such trips away from home would be quite short (up to about 4 weeks) and very finite. However, if the adult has established a new home (e.g. has migrated to a new country, returned to live in their country of residence or commenced living overseas on a work posting), the child should not be considered to be living with the adult.
Example 1: While on a 6 month visit to Thailand, Ralph, who is an Australian resident, commences a relationship with a Thai citizen who becomes pregnant. Ralph returns to Australia prior to the child's birth because his leave from work has ended. After the child's birth, the child (Stan) remains in Thailand with his mother while they wait for Australian visas to be issued.
Stan is not an Australian resident because he does not hold an appropriate visa and he is not an Australian citizen. Ralph is not living with Stan because they do not share the same home (i.e. Ralph has returned to Australia whilst Stan has remained in Thailand). Therefore, Stan cannot be an FTB child of Ralph.
Example 2: John is an Australian citizen whose Australian employer has sent him on a work posting to the UK for a period of 2 years. John holds a visa which allows him to work temporarily in the UK. John commences a relationship with Mary who is a UK citizen. Mary gives birth to a child, Anna. John, Mary and Anna commence living together in rental accommodation.
John and Mary plan to move to Australia permanently as soon as John's work posting is finished. Mary applies for a permanent Australian visa for herself and citizenship by descent for Anna, on the basis of their relationship with John.
When Anna is 3 months old, John is required by his employer to attend training in Australia for a period of 2 weeks.
Anna is not an Australian resident because she does not hold an appropriate visa and she is not an Australian citizen. It is likely that John would be considered an Australian resident because he is an Australian citizen, his employment ties are to Australia, he owns a house and other assets in Australia and he plans to commence living permanently with his family in Australia in the near future (factors to consider when deciding whether an individual is residing in Australia are discussed under 'Determining Australian residence' below.
While John is in the UK, Anna is living with John. When John goes to Australia for 2 weeks to attend training, Anna would probably still be considered to be living with John because his absence from the family home in the UK is only for a short period.
Act reference: FAAct section 3(1)-'Australian resident', section 21(1) When an individual is eligible for FTB in normal circumstances
SSAct section 7(2) An Australian resident is a person who..., section 7(3) ...deciding whether or not a person is residing in Australia...
An individual who qualifies for SpB under Social Security Act 1991 section 729(2)(f)(v) and who is in Australia or temporarily absent does not have to satisfy the residence requirements under Social Security Act 1991 section 7(2). The individual does not need to receive SpB. See the table below for these exceptions.
The holder of a visa that qualifies for SpB.
The following visa subclasses qualify for SpB and may therefore meet FTB eligibility requirements, subject to meeting other eligibility criteria:
- subclass 309 Spouse (Provisional)
- subclass 309 Partner (Provisional)
- subclass 310 Interdependency (Provisional)
- subclass 820 Extended Eligibility (spouse)
- subclass 820 Extended Eligibility (partner)
- subclass 826 Interdependency (Provisional)
- subclass 785 Temporary Protection
- subclass 786 Temporary (Humanitarian Concern)
- subclass 447 Secondary Movement Offshore Entry
- subclass 451 Secondary Movement Relocation
- subclass 695 Return Pending Visa
- Criminal Justice Stay Visa issued under subsection 155(2) of the Migration Act 1958
- subclass 787 Witness Protection (Trafficking)(Temporary)
- subclass 070 Bridging (Removal Pending)
Act reference: FAAct section 21(1) When an individual is eligible for FTB in normal circumstances
SSAct section 7(2) An Australian resident is a person who…, section 729(2) Qualification for SpB see sub paragraphs (f)(i) and (f)(v)
Policy reference: SS Guide 18.104.22.168 Qualification for SpB
An individual who is not an Australian resident may still be eligible for CCB if their circumstances are an exception to the residence requirements.
For more detailed information on the CCB residency exceptions, see 22.214.171.124 Australian Residency Exceptions for CCB.
Act reference: FAAct section 42 When an individual is conditionally eligible for child care benefit by fee reduction for care provided by an approved child care service, section 44 When an individual is eligible for child care benefit for a past period for care provided by an approved child care service, section 45 When an individual is eligible for child care benefit for a past period for care provided by a registered carer
SS Guide 9.2 Visa Subclasses & Payment Eligibility for Visas Issued After 1/9/94
To be eligible for FTB, baby bonus and CCB, an individual must not only be an Australian resident and have the right to live permanently in Australia, but also:
Social Security Act 1991 section 7(3) lists the factors to be taken into account in deciding whether a person is residing in Australia. The key point is to establish that Australia is the person's settled or usual place of abode - i.e. that the person makes Australia his or her home. It is not generally possible for a person to be residing in more than one country at the same time. In most cases, the balance of a person's ties will weigh more heavily in favour of one country than another. Note that it is just as important to take into account the converse of each factor. The decision as to whether a person is residing in Australia must be based on the balance of all the available evidence. No single factor should be taken to be conclusive on its own.
The Social Security Act 1991 section 7(3) factors, and a brief discussion of each, are:
Explanation 1: A mortgage or rental lease in Australia is a good indication that a person is residing here. However, many people do not have such formal living arrangements. The aim is to establish that the person has more settled or permanent accommodation in Australia than in any other country.
Explanation 2: As well as the nature and extent of the family relationships the person has in Australia, consideration must be given to the nature and extent of any family relationships the person has outside Australia. If the person has a spouse, where does the spouse live? If the person has dependent children, are the children enrolled in school in Australia?
Explanation 3: Assets such as bank accounts, investments, real estate, a car and furniture are useful indicators. However, care should be taken to ensure that poverty, lack of assets and lack of income are not counted against a person's claim to be residing in Australia.
Explanation 4: A person does not need to be continuously present in Australia in order to be residing here. A person holidaying, or working temporarily, overseas does not necessarily cease to reside in Australia while they are away. On the other hand, a person who spends more time overseas than in Australia would not usually be considered to be residing in Australia.
Explanation 5: This last provision is not intended to penalise people who plan to live overseas at some time in the future. It is intended to allow other factors to be taken into account, where relevant. It should be considered in the context of all the other Social Security Act 1991 section 7(3) factors.
Example: A return airfare to another country may indicate that a person does not intend to remain permanently in Australia, whereas a one-way ticket may indicate that a person intends to stay. However, such a factor should not be taken, of itself, to be conclusive evidence of a person's intentions.
The factors that would be relevant would depend on the circumstances of each case. A combination of these factors should be considered for a particular case. No one factor is likely to be enough to decide whether a person is, or is not, a resident. Considering the circumstances of each case and having applied the guidelines given above and if satisfactory answers have been provided then the person can be considered to be residing in Australia or as intending to reside permanently or indefinitely in Australia. Once a decision is taken that a person is residing in Australia and payment is granted, and subsequently when reviewed it is found that they have not made sufficient efforts to permanently reside in Australia as implied at the time of claim, then their entitlements to FTB, baby bonus and CCB may be stopped.
On a review if there is sufficient evidence to support the fact that an individual never intended to reside in Australia, FTB, baby bonus and CCB paid to the person may be a debt to the Commonwealth from the date of grant.
Act reference: SSAct section 7(3) In deciding whether or not a person is residing in Australia…
Policy reference: SS Guide 126.96.36.199 Residence Requirements
Last reviewed: 13 May 2013