Burgman and Ors and Repatriation Commission - [2002] AATA 893

DECISION AND REASONS FOR DECISION [2002] AATA 893

ADMINISTRATIVE APPEALS TRIBUNAL )

)No N2001/1540;

VETERANS' APPEALS DIVISION ) N2001/1579; N2001/1622

Re      IMELDA MARY BURGMAN
  First Applicant
  GRETCHEN PARNELL

Second Applicant

MARGARET PARNELL-SCHONEVELD
Third Applicant

And REPATRIATION COMMISSION
Respondent
DECISION

Tribunal The Hon Mr R N J Purvis Q.C., Deputy President

Date4 October 2002
PlaceSydney

Decision The Tribunal affirms the decisions under review.

..............................................
The Hon Mr R N J Purvis Q.C.,
Deputy President
CATCHWORDS
VETERANS' AFFAIRS – claims as civilians interned in the then Netherlands East Indies by Japanese army during WWII – whether domiciled or not in Australia at the relevant time – common law as to domicile – woman on marriage assumes the domicile of her husband – domicile of children dependent on that of their mother

Compensation (Japanese Internment) Act 2001 – sections 4 and 5
Domicile Act 1982 – section 5(1)

SRQQQ and SRRRR and Repatriation Commission [2002] AATA 510
Attorney General (Alberta) v Cook [1926] AC 444
Ross v Ross [1930] AC 1
Re G [1966] NZLR 1028
Re Beaumont [1893] 3 Ch 490
Hyland v Hyland [1971] 18 FLR 461
Henderson v Henderson [1965] 1 All ER 179

REASONS FOR DECISION

4 October 2002 The Hon Mr R N J Purvis Q.C., Deputy President

the application

These are three applications made by sisters Imelda Mary Burgman and Margaret Parnell-Schoneveld and their sister in law Gretchen Parnell ("the Applicants") for a review of a decision of the Repatriation Commission made on 20 September 2001 to reject the Applicants' claims for compensation payments under the provisions of the Compensation (Japanese Internment) Act 2001 ("the Act"). The Act took effect from 25 May 2001.
On 19 July 2001, 18 July 2001 and 30 July 2001 respectively, the Applicants made their claims seeking payment under the Act of $25,000 each on the grounds that they, and in the case of Gretchen Parnell her deceased husband, were civilians who had been interned by the Japanese for a period between 7 December 1941 and 29 October 1945 and who were, immediately before that internment, domiciled in Australia.
The only issue now arising for determination in respect of these applications is whether at the relevant time the sisters, and in the case of Gretchen Parnell her deceased husband, were domiciled in Australia within the meaning of the Act. All other prerequisites for payments of compensation are satisfied.
the hearing
At the hearing of these applications Gretchen Parnell and Margaret Parnell-Schoneveld were represented by Mr Neal Dawson of counsel, Imelda Burgman was represented by Mr Christopher Murnane solicitor of Messrs Walsh and Blair Lawyers. The Respondent, the Repatriation Commission, was represented by Ms Rhonda Henderson of counsel.
The documents lodged by the Respondent pursuant to the provisions of section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T8 in Imelda Burgman's application and T1 to T3 in each of the other two applications. A document of Mrs Margaret Parnell-Schoneveld was tendered and admitted as an exhibit – Exhibit A.
Oral evidence was given by each of the Applicants, on which Imelda Burgman and Margaret Parnell-Schoneveld were cross-examined.
The three applications were heard together, the evidence in the one being the evidence in each of the others.
the statutory provisions
The relevant applicable statutory provisions are as follows:
"Section 4 Eligibility for compensation payment
…
Civilian (in own right)
(2) A person is eligible for a compensation payment in a person's own right as a civilian if the following conditions are satisfied:
(a) the person was alive at the beginning 1 January 2001;
(b) the person was interned by Japanese military forces at any time during the designated war period;
(c) the person was domiciled in Australia immediately before the commencement of that internment.
Partner of deceased civilian
(3) A person is eligible for compensation payment in respect of a deceased civilian if the following conditions are satisfied:
(a) the person was alive in the beginning of 1 January 2001;
(b) the civilian died before 1 January 2001;
(c) the person was a partner of the civilian immediately before the civilian's death;
(d) the civilian was interned by Japanese military forces at any time during the designated war period;
(e) the civilian was domiciled in Australia immediately before the commencement of that internment.
…
Section 5 Amount of compensation payment
A compensation payment is a one-off payment of $25,000."

the relevant facts

Imelda Burgman was born in Wagga Wagga NSW on 21 July 1921 and Margaret Parnell-Schoneveld in Toowoomba Queensland on 17 June 1926. They are two of the daughters of Francis Edward Parnell and Eileen Frances Parnell. Francis and Eileen Parnell had a son Francis Elliott Parnell who was born in Wagga Wagga on 19 February 1925 and was the late husband of Gretchen Parnell. Imelda Burgman, Margaret Parnell-Schoneveld and Francis Elliott Parnell will herein after be collectively referred to as the Parnell children. There was another daughter of the marriage Bernadette Parnell but she is not a party to these proceedings.
Francis Edward Parnell, father of the Parnell children died as a consequence of a motor vehicle accident on 27 February 1926.
In 1930 Eileen Frances Parnell ("the mother") took the Parnell children on a cruise from Sydney to Singapore. There in October 1930 she married Mr C J G Keyzer. Mr Keyzer was described in the evidence as a Dutch national, having been born in Holland. Mr Keyzer had not lived in Australia prior to the relevant time. Mr and Mrs Keyzer had two children of their marriage, Handrik born in 1931 and Cornilious born in 1935.
In 1931 Mr and Mrs Keyzer and the Parnell children moved from Singapore to Batavia, then the capital of the Netherlands East Indies, where they lived as a family, the children attending local schools. As it was described by Mrs Margaret Parnell-Schoneveld "we lived there – went to school there. My mother married a Dutch man" (N2001/1622: T3, p11); by Mrs Gretchen Parnell, the mother "met and married a Dutch man, lived in Singapore then Batavia taking the children with her" (N2001/1578: T1, p4); and Mrs Burgman "…the family moved to Batavia on Java, the N.E.I. [Netherlands East Indies], where we grew up in her [the mother's] care" (N2001/1540: T3, p13). Mr Keyzer was based in the Netherlands East Indies (Transcript, pp 7-8).
The Japanese army occupied Batavia and the island of Java in March 1942. At that time the Parnell children were all under the age of 21. Mrs Margaret Parnell-Schoneveld did say that the mother was, "when war broke out", that is, following the outbreak of the war in the Pacific, arranging to "book the children" into boarding schools in Australia (Transcript, p19). The children with their mother were interned by the Japanese on the island of Java for approximately three years. On release, at the end of the war, the Parnell children together with the Keyzer family were brought to Australia. Other than for Francis Elliott Parnell, who died on 10 December 1966, and Imelda Burgman who lived in Holland for approximately four years, the Parnell children have since that time lived in Australia.
the relevant law applicable to domicile
The term domiciled is not defined in the Act. The Domicile Act 1982 (Cth) which substantially modified the common law is not applicable. Section 5(1) of the Domicile Act 1982 provides that:
"The domicile of a person at a time before the commencement of this Act shall be determined as if this Act and the Domicile (Consequential Amendments) Act 1982 had not been enacted."

Accordingly, it is the common law as to domicile that is relevant to this application.

Domicile is defined in the Australian Legal Dictionary as:
"The headquarters or home each person is required to have in order to attract legal rights and duties: Whicker v Hume [1858] 7 HLC 124; 11 ER. A person's domicile is generally the country in which they reside with an intention to remain for an indefinite period. Domicile is of three types: of origin, of choice, and of dependence."
In SRQQQ and SRRRR and Repatriation Commission [2002] AATA 510, the Tribunal at paragraph 31, stated the common law position as to domicile as:
"At Common Law every person must have a domicile but no one can have more than one domicile at the same time. At birth children acquire the domicile of one of their parents: a legitimate child acquires the domicile of his or her father and an illegitimate child acquires the domicile of his or her mother. A person may change their domicile by adopting a domicile of choice. A domicile of choice is acquired if a person resides or has resided in a country and intends to remain there indefinitely. A person may acquire a domicile of choice notwithstanding a continuing emotional attachment to another country. A person may also abandon an earlier domicile of choice if he or she ceases to have the intention to remain there indefinitely. Unless the person has formed an intention to live indefinitely in a new (third) domicile at the time of the abandonment, the domicile of origin revives. (Generally, see Halsbury's Laws of England (ref: para680FF))."
At common law a person is only able to have an independent domicile if that person has attained the age 21 years. No one of the Parnell children had at the relevant time attained that age.
A woman on marriage assumes the domicile of her husband and changes to whatever domicile he may acquire in the course of the marriage. It is a universal maxim that the wife takes the domicile of her husband (see Attorney General (Alberta) v Cook [1926] AC 4444; Ross v Ross [1930] AC 1).
The domicile of a child whose father is no longer alive is primarily dependent on that of his or her mother who has the option of changing the child's domicile as she changes hers but may abstain from exercising that option if this is for the welfare of the child (see Re G [1966] NZLR 1028; Re Beaumont [1893] 3 Ch 490).
submissions made on behalf of the parties and decision
The Respondent maintains that the Parnell children were not domiciled in Australia immediately before the commencement of their internment as required by sections 4(2)(c) and 4(3)(e) of the Act. It is contended that at all relevant times the Parnell children were domiciled in the Netherlands East Indies.
While the Respondent accepts that the domicile of origin of the Parnell children was Australia – the children born during their father's lifetime acquired his domicile and Margaret who was born after his death acquired that of her mother (Halsbury's Laws of England, Third Edition, Volume 8, para 685) – it is submitted that in marrying Mr Keyzer, the mother acquired the domicile of her then husband. Mr Keyzer was a Dutch man and on the evidence his domicile of choice was the Netherlands East Indies. It was there he had his home, it was there that his wife and family lived from 1931 to 1942, it was there that his wife bore his children, it was there that the children went to school and it was from there that he worked. His place of domicile was not Australia.
As no one of the Parnell children had attained the age 21 at the time of their internment, they did not have the capacity to adopt a domicile of choice for themselves. The mother retained her capacity to choose their domicile. It is submitted that the mother's conduct was consistent with an intention on her part that she and the Parnell children would live and remain indefinitely with Mr Keyzer and the Keyzer children in Batavia. That is, that she adopted a domicile of choice for herself and the Parnell children in the Netherlands East Indies. The Keyzer children were also there domiciled by reason of the domicile of their father. The domicile of the Parnell children was that chosen for them by their mother, which was the Netherlands East Indies.
On behalf of the Applicants it is submitted that there is not any evidence of an intention of the mother to change the domicile of her children one way or the other and that the proper test to be applied is that there needs to be evidence of such an intent, or else domicile of origin remains (Hyland v Hyland [1971] 18 FLR 461; Henderson v Henderson [1965] 1 All ER 179).
In the alternative, it was contended on behalf of the Applicants that if the Tribunal decides that the Parnell children's domicile followed that of their mother after her marriage to Mr Keyzer, then the evidence of arrangements made by her "when the war broke out" for her children to travel to Australia for their education, shows a positive choice by her to change their domicile back again. While there was evidence as to the mother having received financial contributions from a family farm in Australia, there was no evidence as to the size or purpose of these contributions, the use of them, and indeed the level of financial support provided by the mother.
The Tribunal is satisfied on the evidence that while there may well have been continuing emotional and to some degree financial attachment on the part of the mother to Australia, that in making the decision to be with Mr Keyzer in Batavia from 1931 to the internment, during which time she had two children by him, the mother was adopting the Netherlands East Indies as her and the Parnell children's place of residence with the intent of residing there indefinitely. She formed this intent on her own behalf and on behalf of the Parnell children.
There is not any evidence that the mother, when by operation of the common law she assumed the domicile of her husband, took any action which would evidence an abstention from causing the domicile of her children to follow that of herself (see Re G [1966] NZLR 1028; Re Beaumont [1893] 3 Ch 490).
The Tribunal is satisfied that the Parnell children's best interests were to the effect that at that time their domicile should follow that of their mother, which it did.
The proper question to be asked in these applications and on the issue of determination is as to what evidence there is to show that the mother did not intend their children's domicile to follow their own for their wellbeing or otherwise.
Even be it the mother made arrangements "when war broke out" for the children to attend boarding schools in Australia, a domicile of choice is not acquired merely by living in a place for a "temporary purpose such as eduction". (see Re Beaumont [supra]).
The Tribunal accepts the submissions made on behalf of the Respondent. It is not satisfied on the evidence that it was the mother's intention that her children's domicile should not follow her own. She had decided for her own wellbeing and that of her dependent children to be domiciled with her husband and six children in the Netherlands East Indies indefinitely. The Tribunal is satisfied that the mother made a positive determination to this effect. The Tribunal is satisfied that the Parnell children were not domiciled in Australia immediately before their internment within the meaning of the Act.
For the reasons herein before set forth the decisions under review are affirmed.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon Mr R N J Purvis Q.C., Deputy President
Signed:         .....................................................................................
  Associate
Date of Hearing  2 September 2002
Date of Decision  4 October 2002
Counsel for Gretchen Parnell and
Margaret Parnell-Schoneveld      Neal Dawson
Solicitor for Imelda Burgman        Christopher Murnane
Counsel for the Respondent         Rhonda Henderson