Department of Social Security v Ho, V.L

[1987] FCA 568

CATCHWORDS

APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL - Family

Allowance - children livmg ln Vletnam - meaning of "custody, care and control" - factual test - test of oarental soverelgnty and autonomy not approprlate.

Social Security Act 1947 (Cth) ss.6(1), 6(1A), 94(2), 95, 96,

99A, 105.

Adminlstratlve Appeals Tribunal Act 1975	(Cth) s.44
Family Law Act (Cth) s.61.

SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY V. VAN LUC H0

NSW G620 Of 1986

Davies J.

27 October 1987

Sydney.

IN THE FEDERAL COURT OF AUSTRALIA	)
)

NEW	SOUTH WALES DISTRICT REGISTRY	)	No. G	,6 20 of 198	6
)

DIVISION GENERAL )

BETWEEN:

SECRETARY TO THE

DEPARTMENT OF SOCIAL

SECURITY

Applicant

- AND : VAN LUC H0

Respondent

CORAM :	Davies J.
DATE :	27 October 1987
-
PLACE :	Sydney

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be allowed.

2 . The decision under appeal be set aside.

3 . The matter be remitted to the Adminlstratlve Appeals

Tribunal for rehearing accordlng to law. a

NOTE :

Settlement and entry of orders 1s dealt wlth ln

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) No. G620 of 1 9 8 6
)

DIVISION GENERAL )

BETWEEN :

SECRETARY TO THE

DEPARTMENT OF SOCIAL

SECURITY

Applicant

- AND : VAN LUC H0

Respondent

CORAM :	Davies J.
DATE :	2 7 October 1 9 8 7
PLACE:	Sydney

REASONS FOR JUDGMENT

This is an appeal from a decision of the Admlnlstratlve Appeals Tribunal which set aside a decislon that family allowance

not be paid to the respondent, Van Luc Ho, in respect of certaln

of his children in Vietnam and whlch remitted the matter to the applicant for reconsideration in accordance with the Tribunal's view that family allowance should be paid. The appeal, whlch is

brought under s . 4 4 of the Administrative Appeals Tribunal Act

1 9 7 5 (Cth), raises points of law only.

t

2 .

Until 5 September 1985, s.95(1) of the Social Security

- Act 1947 (Cth) ("the Act") provided as follows:-

"95. (1)

Sublect to this Part, a person who has

the custody, care and control of a chlld

(not being a child who is an inmate of an

institution) or an institution of which

children are inmates is qualified to

receive a family allowance in respect of

each such child in accordance with thls

sect ion. "

After amendment by Act No. 95 of 1985, the Act provided:-

"6. ( 1 ) In this Act, unless the contrary intention appears -

'dependent chlld', in relatlon to a person

means -

(a) a chlld under the age of 16 years who -

(1)

is in the custody, care and

control of the person: or

( 1 1 )

where no other person has

the custody, care and

control of the child - is

wholly or substantially In

the care and control of the

person; or

(b) a student child, not being the

spouse of the person, who IS wholly or substantially dependent upon the person:

.. .

(1A) For the purposes of the definition of

'dependent child' in sub-section (l), a

person shall not be taken to have the

custody of a child unless the person,

whether alone or ~ointly with another

person, has the right to have, and to

make decisions concerning, the dally care

and control of the child.

3 .

...

Subject to this Part, a person who has a dependent child or an Institution of

which children are inmates 1s quallfled

to receive a family allowance in respect

of each such child in accordance with

this section.

. ..

Sub~ect to section 104, a family

allowance shall not be granted unless -

(a) the claimant (not being an 1nstltutlon) -

(1) is in Australla; and

(11) if not born in Australia, has, during the perlod of 12 months immediately precedlng the date on which the claim was lodged, had his usual place of

residence in Australia; and the child in respect of whom the family allowance is claimed -

(b)

( i ) is living in Australla, whether

or not he is temporarily absent

from Australia; and

(ii) if not born in Australia, has,

during the period of 12 months immediately precedlng the date on which the claim was lodged, been resident In Australia.

...

Where -

a person makes a claim for a family

allowance that relates to a

dependent child who 1s llv~ng

outside Australia;

the day that is the relevant day in

relation to the person in respect of

the child has not occurred; and

the Secretary is satisfied that It ’

is likely that the person will bring

the child to live in Austrlia on or

before that day,

4 .

paragraph (l)(b) does not apply to the claim

for family allowance.

...

( 7 ) Sub~ect to sub-section ( e ) , the relevant

day, €or the purposes of sub-section ( 5 ) ,

in relation to a person in respect of a

chlld, is the day that falls on the

fourth anniversary of the earllest day

that was a day on which -

(a)	the person was livlng in Australia; and
(b)	the child was livlng outslde Australia; and
(c)	the child was a dependent child of the person.
...

105.   A famlly allowance shall be applied, by the

person, institution or authority to whom lt is

payable to the maintenance, training and

advance of the chlld ln respect of whom it is

granted. "

The respondent, Van Luc Ho, lived in Vletnam wlth hls

wife and eight children until late 1983 or early 1984 when he and

his eldest son escaped from Vietnam and came to Australia. He

intended to bring his wife and the remalnder of hls children to support hls family in Vietnam by sending medical supplies and gold and, by the time of the hearlng before the Tribunal, had

sent to Vietnam goods worth more than $8,000.00. He and his wlfe

communicated regularly by letter and, in accordance with the

custom of Vietnamese families, Mr Ho's advlce and directloq were

obtained wlth respect to all matters of major importance in the

a

children's lives. The wife and children have, however, been

unable to obtain exlt visas to leave Vietnam.

5.

As the result of an application made in May 1984, Mr Ho

was paid a family allowance in respect of his children In Vietnam

but that allowance was cancelled on 1 3 September 1984. The

Administrative Appeals Tribunal held, on the evldence before It,

that the cancellation was wrong. The Tribunal concluded that the chlldren in Vietnam had remained in the custody, care and control of Mr H0 at all times. He was entitled to family allowance ln

respect of all the children save that, as from 1 3 September 1985,

there was an issue arising as to whether the two elder children

in Vietnam, who were then over the age o If 16 years, were

substantially dependent upon him.	That	issue would have to be
further considered.

The words "custody, care and control", which were the operative words both before and after 5 September 1985, and the words "has the right to have, and to make decisions concerning,

the daily care and control of the child", which now appear in

sub-s.6(1A) of the Act, must be interpreted having regard to the

context in which they appear. In that context, the words should

not to be given a narrow, strict or lnflexlble Interpretation.

The Act is welfare legislation and family allowance is provided to assist in the raising and care of children. It 1s an allowance which, pursuant to s.105, must be applied €or the maintenance, training or advancement of the chlld in respect of

whom it is paid. The sections do not provide for an allowance In

respect only of children who are cared for in a particularkay.

6.

The allowance is payable elther to a person who has a dependent

child or to an instltution in which children are inmates. The

person or those persons to whom the allowance is paid need not be

a parent or the parents of the child. The amblt of the

provlslons is, however, llmited by resldential qualificatlons

wlth respect to the claimant and to the chlldren.

In this context, the words "custody, care and control" must be glven an lnterpretatlon whlch encompasses the multltude of clrcumstances in whlch chlldren may be cared for, whether the

care be In the home of parents or in the home of some other person, whether or not the parents be llving together in the home, whether or not one parent may have to travel away from the

home frequently and for long periods, whether or not only one

parent may have legal custody, whether or not the parents may be

married, separated or divorced, whether or not the responsiblllty

for ralsing the chlld is left to one parent or both share that

responsiblllty.

"Custody" In the strlct common law sense referred not to

actual, physical custody hut to the rlght to control. In In Re

Agar-Ellis, Agar-Ellis v. Lascelles (1883) 24 Ch.D. 317 at p.326,

Brett M.R. referred to:-

"... the law of England, whlch IS, that the father	has the control over the person, educatlon, and
conduct of his children until they are twenty-one
years of age." S

l

7.

Legislation has now affected the common law position both in the United Kingdom and in this country. See eg. s.61 Family Law Act

1975 (Cth). And even the common law has tempered its position.

Thus in Gillick v. West Norfolk and Wlsbech Area Health Authority

[l9851 3 All E.R. 402 at 419 Lord Scarman said:-

"In thls appeal, therefore, there is much in the earller

case law which the House must dlscard; almost everythlng

I would say but Its principle. For example, the

horrendous Agar-Ellis decisions (Re Agar-Ellls,

Agar-Ellis v. Lascelles (1878) 10 Ch D 4 9 , (1883)

24 Ch D 317) of the late nlneteenth century asserting

the power of the father over hls child were rightly

remalndered to the history books by the Court of Appeal

in Hewer v. Bryant [l9691 3 ~ l l - ER 578, [l9701 1 QB 3 5 7 ,

an important case to which I shall return later."

At p.420 Lord Scarman expressed the principle	In this
manner:-

"Approaching the earlier law in this way, one finds

plenty of indications as to the principles

governing the law's approach to parental right and

the child's right to make his or her own decision.

Parental rights clearly do exist, and they do not

wholly disappear until the age of majority. property of the child: custody, care and control of the person and guardianship of the property of the child. But the common law has never treated such rights as sovereign or beyond review and control.

Nor has our law ever treated the child as other

than a person with capacxties and rights recognised

by law. The principle of the law, as I shall

endeavour to show, is that parental rights are

derived from parental duty and exist only so long

as they are needed for the protection of the person

and property of the child."

Likewise, in Hewer v. Bryant [l9701 1 O.B. 357 at p.369, Lord

Dennlng M.R. referred to the right of custody as a :-

" ... dwindling right which the courts will hesitat% to enforce against the wishes of the child, and the

8.

more so the older he is. It starts with a right of

control and ends with little more than advice."

I pause to note that the above statements demonstrate one fallacy adopted by the Tribunal in Its reasoning. The

Tribunal thought it desirable to ascertain whether M r HO retained

In Australia his "sovereignty and autonomy" over his children in

Vietnam. Such terms are not apposite even when the word

"custody" looks to legal custody, in the sense of parental

rights. As Lord Scarman pointed out ' I . . . the common law has

never treated such rights as sovereign ..."

However, in the context of the family allowance

provisions, the word "custody" refers to actual custody, not to

legal custody in the common law sense. An analogous context for

the word "custody", the Limitation Act 1963 (U.K.), was

considered in Hewer v. Bryant, cited above. The remarks of Lord pp.369-370 Lord Denning said:-

"However, I will not pursue thls legal concept

further: because I am quite clear that In these

statutes the words 'in the custody of a parent' are

used to denote a state of fact and not a state of

law. The word 'parent' 1s defined to include

grandparents and step-parents. Whoever heard of an

infant being, by operation of law, in their legal custody? And the statute contemplates that a man

of 2 4 , if of unsound mind, may be 'in the custody

of a parent.' That may be so if he is utterly

dependent on him, but not otherwlse. My conclusion

is that an infant is 'In the custody of a parent'

if he is, in point of fact, in the effective care

and control of a parent at the time of the

accldent. I stress the word 'effectlve' because f

am firmly of opinion that Parllament must have had

9.

in mind a parent so circumstanced that it can be

confidently expected that he will take whatever

action is necessary or desirable on behalf of the

infant: so much so that, if the parent fails to

take action, the blame falls on him, and on no one

else. "

Subsequently, in Todd v. Davison [l9721 A . C . 392 at pp.400-401, Lord Morris said:-

"In careful and learned arguments your LordshiDs were referred to a variety of recent legislative provisions relating to the welfare, the custody, the protectlon and the guardianship of Infants and,

In partlcular, to references in those provislons to

the words 'custody,' 'care,' 'charge' and

'control': also your Lordships were referred to

authorities which have been concerned with

questions concerning the right in law to custody.

But, my Lords, ln my view the words 'In the custody

of a parent' (in the legislation now in question)

do not denote a right in law. I consider, in

agreement with the conclusion expressed by Lord Denning M.R. in his judgment in Hewer v. Bryant 119701 1 Q.B. 357, that the words are used to

denote a state of fact. I think that they cover the case where the person under disability is in fact in the care of and is being looked after by a

'parent'.

...

On behalf of the appellant an argument was

addressed in reliance upon some words in Hewer v.

Bryant [l9701 1 Q.B. 357 to the effect that an

infant is in the custody of a parent if he 1s in

polnt of fact in the effective care and control of

a parent at the time of the accident: It was

contended that the parents in the present case had

been inadequate as parents, with the result that

the infant had not been In their 'effective' care

and control. I am sure, however, that the word

'effective' was only used to descrlbe an exlsting state of affairs polnting to care and control and in no sense to suggest that there must be a test as

to the quality of performance or adequacy attained

In the exercise of the care and control. On the

facts in this case, as he found them, I consider l

that the learned	~ u d g e	came to a correct
conclusion."

10.

. .

At p.406, Viscount Dilhorne said:-

"I agree with Lord Denning that 'in the custody of a

parent' denotes a state of fact and not a state of

law (Hewer v. Bryant [l9701 1 9.8.357, 369)."

And at p.408, after referring again to Lord Denning's ~udqment In

Hewer v. Bryant, His Lordship said:-

"When he spoke of the 'effective care and control of

a parent,' I think he was contrastinq real actual

custody with legal custody whlch may be divorced

from care and control. In my view, the

relationship between parent and infant must be such

as to leave no doubt that there was effective care

and control for it to be held that there was actual

custody, but it must be borne in mind that tlme

will begin to run against an infant unless it is

proved that he was not in the custody of a parent

at the time when the right of action arose."

At pp.404-5, Viscount Dilhorne made clear the difference between

legal custody and actual custody. His Lordship said:-

"Though a father may have the right to the custody

of his chlld, it does not follow that he has actual

custody, the care and control of the chlld. Under

section 5 of the Guardianship of Infants Act 1886,

he mav be aiven the custodv, but it may be ordered

that the infant shall not be removed f;om the care

and control of the mother without the leave of the

court: In re W. (An Infant) 119641 Ch.202. In the

Divorce Division it 1s a common practlce to give

custody to a father while ordering that the Infant

is to remain in the care and control of the

mother ."

Lord Pearson expressed a similar view and, at p.412, said:-

11.

"An infant or person of unsound mind 1 s in the

custody of a person who has him In charge	and is
looking after hlm."

Lord Diplock expressed his acceptance of these v i ews.

Likewise, the expression "custody, care and control" in

the Act points to the person who is or persons W ,h o are looklng after, taking care of and controlling the child or, to use the words of Lord Pearson, "who has [or have] him in charge and 1 s

[or are] looking after him." This interpretatlon 1s reinforced

by the reference in s . 6 ( 1 A ) to "the daily care and control of the

child", for that provision refers not to actual daily contact

with the child but to the right to have and to make decisions

concerning the daily care of the child. The provisions do not

abrogate the principle that parents may delegate some of thelr

responsibilities to another. They direct attention to the person who has or persons who have in a factual sense the responslbillty for the ongoing care of the child and who exercises or exerclse

that responsibility.	Lord Denning referred to "efEective care
and control."

Husband and wife may both have the custody, care and

control of a child, in which case sub-s.94(2) provides that,

unless a family allowance is not payable to the wife in respect

of the child by reason other than that the child is not a

dependent child in relation to her, the child is deemed to be a dependent chlld of the wife and not of the husband. So, in the usual case, the family allowance is paid to the w ~ f e . Sec&on

12.

99A provides for the circumstance where two persons are qualified

to receive a family allowance in respect of the same child by

reason of having the custody, care and control thereof. In this

event, the Secretary of the Department of Social Securlty is required to make a declaration of that fact and to share the

family allowance between the two persons to whom the declaration

relates. These are all provisions which help to prevent disputes

as to entitlement which might otherwise occur, but they do not

limit the effect of the interpretation I have already stated.

Indeed, they assist to show that Parliament has in mlnd a

flexible and wide view of custody, care	and control based on
factual circumstances rather than legal	rights.

It may be of assistance to refer to the cases which

Viscount Dilhorne, in - Todd v. Davison, cited above, considered

illustrative of the concept of factual custody, care and control.

In In re W. (An Infant), [l9641 1 Ch. 202, the father had the

legal custody but the mother had the actual custody, care and

control of the child. In that case, it had been ordered that the

father have the legal custody but that the child should not be

removed from the mother without the leave of the Court. In

Woodward v. Hastings Corporation [l9441 K.B. 671, a child lived

at home with his mother when he was not at school. His father

was absent from home for long periods as he served as a writer

in

the Royal Navy, coming home only from time to time on leave. At

p.676, Hallett J. said, "I think that he was in the custody of

his father, although the care of his father, if one wants % draw

. . 13.

a distinction, was limited to such care as the father could give

on leave and by postal and similar communication." Hallett J. went on to state that that conclusion was not essential for if the child were not in the custody of his €ather he was plainly in

the custody of the mother and therefore in the custody of a

parent for the purposes of the Limitation Act 1939 (U.K.). In

Brook v. Hoar [l9671 1 W.L.R. 1336, Melford Stevenson J.

concluded that a boy of 18 who was living at home with his

parents but who went out to work and contributed to the household

expenses was not in the custody of a parent for the reason that,

from the age of 17, he had en~oyed economic independence from his

parents and freedom to live anyway he chose. In Duncan v.

Lambeth London Borough Council [l9681 1 Q.B. 7 4 7 , a child at the

age of 3 had been received into the care of the London County

Council under the Children Act 1948 (U.K.). Thereafter, he had

been regularly visited by the father. Donaldson J. held that the

child was not in the custody of her father. In Hewer v. Bryant,

cited above, it was held, on appeal, that a boy aged 15 years and

8 months, who had gone to work on a farm as an agricultural

trainee and who was living in and receiving weekly wages at the farm, was not in the custody of his parents when he suffered an accident.

Similarly, in a different context, the words

"continuously in the care and possession of" in the Adoptlon Act

1958 (U.K.) were held in In re B (An Infant) [l9641 Ch. 1 to be

satisfied notwithstanding that the unmarried mother, a nurIfe,

. . 14.

lived in at a hospital and left her child on an average 4 days

and 5 nights per week with a married couple who llved nearby. In

In re B (An Infant) at p . 7 , Buckley J. said:-

"Was there at any time during the relevant period

anyone other than the applicant who effectlvely

controlled any aspect of the child's life and, if

so, was such control exercised and en~oyed	wlth the
consent and authority of the applicant or

otherwise? During the applicant's periods of duty

M r . and Mrs. B have, or one of them - and doubtless it has usually been Mrs. B - has had the physlcal care and control of the child and been obliged to make the constant translent decisions whlch are involved in looking after and controlllng a small

child. This function, however, has been performed

on the applicant's behalf and In consequence of

arrangements made by her."

Buckley J. reviewed a number of Scottish cases: In re E . O . ,

Petitioner 1951 SLT (Sh.Ct.) 11, In re A., Petitioners 1953 SLT

(Sh.Ct.) 45, In re S., Petitioner 1953 SLT 220, In re F.,

Petitioners 1955 SLT (Sh.Ct.) 12, In re X.Y., Petitioners 1954

SLT (Sh.Ct.) 86, In re G., Petitioner 1955 SLT (Sh.Ct.) 27 and In -

re A., Petitioners 1958 SLT (Sh.Ct.1 61. His Lordship also

referred to In re C.S.C. (An Infant) L19601 1 W.L.R. 304. Of

these decisions, the most relevant is In re X.Y.,	Petitloners of
which his Lordship said, at p.6:-

"In In re X.Y., Petitloners, the applicants were a

husband and wife. The child was an illegitimate

child of the wife. Shortly after the presentatlon

of the petitlon to the court the husband left for

Canada with a view to establishlng a permanent home

there for his family and himself and at the date of

the hearing he had been ln Canada for over two

months. The child remained meanwhile in this

country wlth the wrfe. The application was refus2d

on account of the husband's absence. In the course

. . 15.

of his judgment the sheriff-substitute said: 'The

child may be in the care and possession of an

applicant "continuously" even when there are

temporary absences from one another provided their

permanent home is the same. That is not so here."'

I mention these cases by way of illustration. They

provide general guidance. However, as the ob~ect of the family allowance provisions in the Act is different from that of other statutes, care must be taken in applying the decisions in the one

field to the circumstances in the other.

The principles that I have enunciated have been applied

in decislons of the Administrative Appeals Tribuna1,see

particularly Re Ta (Hung Manh) and Director-General of Social

Security (1984) 6 A.L.D. 633, a decision of Deputy President

Hall, and Re Le and Secretary to the Department of Social

Security (1986) 11 A.L.N. N6, a decision of the President, Deputy

President Bannon and Senior Member Hallowes. In the present

case, the Tribunal referred to those and like decisions and set

out extracts from what was said in Re Le, including the following

extract from the Joint reasons of the President and of Mrs

Hal1owes:-

"'[Clustody, care and control' is 'a composite

expression referring essentially to the

responslbillty for the actual day to day

maintenance, training and advancement of the

child'. The Act looks to a person who has the

responslbillty for the care of the child and

exerclses that responsibility. Clearly, since	the
introduction of s.6(lA) the adoption of that

concerned primarily with the niceties of the commdn	responsibility must be lawful .... The Act is not
law principles as to guardianship or with the

. . 16.

niceties of an order of the Family Court of

Australia as to custody, access or the like. The

Act is looking essentially to the situation where a

person lawfully has responslbillty for and

exercises responstbility for the welfare of a chlld.

Clearly, a parent may delegate part of his or her

responsibility. A child does not cease to be in the custody, care and control of a parent by reason that the child 1s placed in a boarding school. Nor does

a parent necessarily lose custody, care and control

if the child should go overseas, even for an

extended time, for a holiday or for study or for the

like. Indeed, the Act, ln s.96, expressly makes

provision with respect to a dependent chlld who is

living outside Australia."

In this appeal, nelther Mr R.B. Wilson, counsel for the

applicant, nor Mr I.M. Khan, who appeared for Mr Ho, challenged

the views there expressed.

Nevertheless, aspects of the reasoning of the Tribunal in the present case give rise to concern. The Tribunal said:-

"In Ta, Deputy President Hall raised the possibility

thara person could retain 'custody, care and

control', notwithstanding that that person had

delegated some aspect of it to others. The issue

of delegation was taken up by an officer of the the Director of Appeals concerning a Social

Security Appeals Tribunal recommendation. The

letter of advice suggests that, if delegation is

total and not merely substantial, the applicant

cannot claim entitlement to family allowance on the

basis of 'care, custody and control', relying upon the view of Deputy President Hall in E. However,

we would take a different approach to	the relevance
of delegation.

All parents delegate aspects of thelr custodial,

caring and controlling role to others. Some

delegate more than others. In some families, the

parents or parent might be completely engrossed in 1

outside pursuits, whether they be work or social,

and might have delegated all aspects of the

17.

custodial, caring and controlling role of the

parent to another. The delegate might be a member

of the extended family, or a housekeeper. A father

might delegate all aspects of the tradltlonal

paternal role to the mother, or vice versa. But

the nature, c~rcumstances, and extent of the

delegatlon matter nought.

The Issue is one of a parent retaining parental

sovereignty and autonomy over the children. Such a

parent will be able to delegate all or part of his

or her custodial, caring and controlling role to

others, and have the delegatlon respected.

...

We would say, with the greatest respect to Deputy President Hall in Ta, that the question is not ultimately whether-ihe applicant has the 'custody, care and control' of his children but ultimately, whether he has retained parental soverelgnty and autonomy notwithstanding his indefinite separatlon

from his wife and children. We confine ourselves

completely to the situation such as that under

review, where a marriage partner has fled to

Australia and hopes to be lolned by the rest of the

family at some future time. The indicia of

custody, care and control in such a situation are

that:

the applicant should have contlnually and

consistently asserted (his or her)	parental
sovereignty and autonomy: and

this assertion of sovereignty and autonomy should by and large have been accepted and respect by those affected, particularly the

children, the spouse, and his delegates (If

any) :

this care be demonstrated by his ongoing

provision of significant material and

emotional support ."

The import of this reasoning is difficult to determlne

for the Tribunal did not hold that Mr HO had In fact delegated any authority to his wlfe and did not base its decislon upon a

view as to delegation. Nevertheless, 1t 1s clear that the

*

Tribunal applied a view of the law other than the view which I

. .

have enunciated and which was enunciated in Re Ta and

Director-General of Socia 11 Security and in Re Le and Secretary - to

the Department of Social Security.

As the issue is a factual one, as to who has the actual

care of and responsibility for the welfare of the child, facts

which have occurred in the course of an alleged delegation o f

authority are obviously relevant. Why dld the Tribunal say:-

"... the nature, circumstances and extent of the delegation matter nought."?

The Tribunal referred to "the traditional paternal role" and

defined the issue as one of "a parent retaining parental

sovereignty and autonomy over the children." For the reasons I

have given, that is not the Issue. The words "Sovereignty and

autonomy" are not appropriate these days, and perhaps never were,

even to describe the right of legal custody which a parent may

have in relation to hls or her children. But even if they were,

they are not an appropriate test when the issue is factual

custody and control. That issue 1s determined by the facts of

the case, facts which show who is caring for the child, who has

undertaken that responsibility. The words "sovereignty and

autonomy" import concepts of entitlement whereas the famlly

allowance provisions are concerned wlth what actually occurs.

19.

One can only speculate what the Tribunal may have had in mind when it stated "with the greatest respect to Deputy

Presldent Hall in Ta, ... the question is not ultimately whether -

the applicant has the 'custody, care and control' of his children

..." That is the test laid down by the legislation and Deputy

President Hall in Re Ta was correct in applying It. The Tribunal

was in error when it went on to say that the true question was

' l . . . ultimately, whether he has retained parental soverelgnty and

autonomy notwithstanding his indefinite separation from hls wife and children .. ." The Act does not adopt "parental soverelqnty and autonomy" as its test for family allowance.

The Trlbunal lald down three indicia of "custody, care and control" to be applied in the circumstances of the case.	In
doing so, the Tribunal was in error for those lndicla are not

specified by Parliament. The legislative crlteria is "custody,

care and control" and it is wrong to substitute for that

expression words or tests that Parliament has not adopted.

AS, therefore, the Tribunal approached the matter on an

incorrect basis, the appeal must be allowed and the Tribunal's

decislon set aside.

Mr Wilson submitted that the decision under appeal was unreasonable, that the only decision open was that Mr Ho did not

have the custody, care and control of his children in Vletnam and

that the Court should make an order afflrmlng the decision khich

had been under review by the Administrative Appeals Trlbunal.

. . 20.

However, I do not see the matter in such clear terms. The circumstances which justify a flnding of custody, care and control are so various that a Court which is limited to

determining a point of law only should be reluctant to express

its own view. "Custody, care and control" is a factual issue and

should be determined by the Administrative Appeals Tribunal, not

by thls Court.

The declsion under appeal will therefore be set aslde.

The matter wlll be remitted to the Adminlstratlve Appeals

Tribunal for rehearing according to law.

I certify that this and the 1 9

preceding pages are a true copy	of
the Reasons for Judgment herein	of

the Honourable Mr Justice Davies.

Associate: 2 4.--aaO,

Counsel for the applicant: Mr R.B. Wilson

Solicitors for the applicant: Australian Government Solicitor

Counsel for the respondent:	Mr I.M. Khan
Solicitors for the respondent:	Legal Aid Commission of NSW
Date of hearlng:	29 September 1987