Department of Social Security v Ho, V.L

[1987] FCA 168

LIMITED DISTRIBUTION

-	IN TEE FEDERAL COURT OF AUSTRALIA	1
)
NEW SOUTH WALES DISTRICT REGISTRY	) No G 620 of 1986
GENERAL DIVISION

Between: SECRETARY OF TEE DEPARTMENT OF

SOCIAL SECURITY

Appellant

And : VAN LUC EO

CORAM : Einfeld J.

- DATE : 12 March 1987

EX-TEMPORE JUDGMENT

Thls is an application by the appellant Secretary for a stay of a

judgment of the Administrative Appeals Tribunal ("the Tribunal") given

on 28 November 1986 that a decision by the Department of Social Security

to refuse entitlement to famlly allowance to the respondent should bc

set aside and reconsidered in the light of the reasons glven by the

Trlbunal. -.

The Secretary of the Department has appealed from that determinatlon of

the Tribunal by its amended notlce of appeal filed In court today.

Three matters arise for determination on that appeal, two of them from

the meanlng of the words "custody care and control" in section 6 and

section 95 of the Social Securlty Act 1947 ("the Act"). The other

ground of appeal alleges that the decision of the Tribunal was

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unreasonable and failed to take into account a relevant conslderation.

Nothing was advanced before me suggesting that the cogency of the last-

mentioned ground was relevant to the issue of the application for the

stay. It was not argued at all.

Today's application for a stay of the Tribunal's decision is intended to achieve no payments of money to the respondent until the determlnatlon

of the appeal by thIs court. There IS no doubt that if the appeal had

substantial merit on Its face, a stay would ordinarily be granted, as

success in the appeal w11l mean that no moneys are payable to the

respondent. In thls particular case one reason for granting the stay

would be that the amount immediately payable to the respondent following

upon the decision of the Tribunal is, I am informed, in excess of $7 ,000

and the monthly amount payable hereafter would be $270. If paid to the

respondent now, it is said that he might have some difficulty repaylng

it If the appeal is successful. I shall return to this argument later.

The facts of the matter are set out in the judgment of the Tribunal and

do not now need repetitlon other than to observe that the family

allowance payments in dispute here are payments in respect of seven of

the respondent's children who reside in Vietnam wlth his wife, he having

escaped the communist regime in VIetnam wlth other chlldren who came

with hlm to Australia.

I am Informed that the words "custody care and control" have been

deflned on a number of occasions by the Tribunal, sometimes in allegedly

conflictmg or lnconsistent ways. Some of the decislons of the Trlhunal

are referred to in the judgment under appeal, but because of the urgency

of determining the stay application, I have not had the opportunity of

reading them. I am also informed that no superior court has yet

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pronounced on the meaning of those words in the social security context,

although they certainly have been interpreted and explained at least In

family law and maintenance contexts.

Counsel for the appellant Secretary in a thoughtful and sensitive

submission suggested that the definition f "care, control and custody"

adopted by the Tribunal in this case, namely, parental autonomy and

sovereignty, was too narrow a test and that in fact there should be

imposed a wider composite factual test dealt with from case to case.

Be suggested that "care" means, inter alia, physically caring for the

child and being responsive to the needs of the child, both physical and

emotional; that "custody" involves having the ability to require the

child to move; and that "control" embraces the concept of being able to

direct the behaviour of the children.

Whilst I accept his argument that parental sovereignty may be a somewhat

ethereal or aristocratic term inappropriate for modern-day conditions in

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Australia govening the relations of parents and children, nonetheless 4

even the acceptance of his terminology suggests that Mr. Van Luc Bo

would to the maximum possible extent in the circumstances, pass most, if

not all, of the major suggested criteria. I am advised that government

does not administer its obligations to pay family allowances by

excluding all cases where children live in separate premises to the

parents. Some instances were discussed, such as for example, If the

children live with grandparents	or relatives in another State; If they
live in a boarding school;	or even if an older daughter were, for

example, to be undergoing finishing school in Switzerland. Counsel for

the Secretary fairly put these matters as raising questions of degree

but did not suggest that such children would ipso facto be excluded from

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family allowance merely because the children were in fact absent from

the home in which the recipient of the family allowance was living.

The reasons for decision of the Tribunal inform me (and neither party suggests the Tribunal was erroneous in these respects) that orlglnally

this application for famlly allowance in respect of the children living

in Vietnam was granted as from 15 January 1984 and was paid until 13

September 1 9 8 4 . Since that time the matter has been progressing through

the rather tortuous lourney of appeal and review provlded by the

legislation - through the Social Securlty Appeals Tribunal (which

apparently recommended similarly to the Administrative Appeals Trlbunal)

and reconslderation by Canberra (which ultimately did not follow the

recommendatlons of the Social Security Appeals Trlbunal) to the

Tribunal. It 1 s now three and a half years slnce payments were last

made, and Mr. Van Luc Ho has had to maintain both the Australian and the

Vletnamese-based branches of his family on hls earnings and unemployment benefits ever since. That his rights to famlly allowance are still

unresolved is a shameful castigation of our system of revlew.

Both the Administratlve Appeals Tribunal and the Soclal Securlty Appeals out the reasons why the family allowance was cancelled. Amongst other reasons glven were that the respondent:

was unable to control the children's movement out	of
Vietnam;

had been forced to leave practlcally the whole of the custody

care and control of his children to his wlfe for an

lndetennlnate period;

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could not limit the scope of the delegation (I assume, to

his wife 1 ;

could give no absolute guarantee that he would be

able to bring his wife and children to Australia;

could not bring the children under his personal

control should the circumstances (presumably, of the children’s

welfare) warrant this.

If these reasons are accepted as adequate for the refusal of a family

allowance, it would mean that Australian law provided for parents to be

refused the allowance who were wholly supporting their children and

maintaining them to the maximum of their financial and physical capacity

because an authoritarian and autocratic dictatorship imprisoned the

children and refused to allow them to travel or migrate to Australia

even for family reunion purposes	in breach of their entitlement under
international law.

I cannot believe that the Australian Parliament had this in mind when it

included the words, “care, control and custody”, in its legislation; nor

can I believe that the Department of Social Security is or would be so

lacking in compassion that it really Intends that such cases should not

by definition be entitled to the payment of family allowance. Whilst it

is understandable that the Department would be wary of making payments

in cases where there is doubt about the proper association of the

parental recipient of the family allowance and the chlldren in whose

name and on whose behalf it is paid and received, the Secretary’s

counsel did not argue that this was such a case.

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The authoritative deflnltlon of the relevant words wlll, of course,

ultimately be a matter for the appeal court on the hearlng but in order

to grant a stay of the payments whlch necessarlly arise from the

Tribunal's declslon, I would need to be satisfied that the argument

sought to he advanced by the appellant on the appeal had real,

persuasive or at least strongly arguable substance. For the reasons I

have given, I am unable to have that convlctlon in thls case.

Finally, I return to one of the grounds upon which the appellant sought

the stay, VIZ. that Mr. Van Luc Ho would be unable to repay some or any

of the money paid if the appeal should in fact be upheld. This

assertlon appears to me to be very doubtful, to say the least. Mr. Van Luc Ho is apparently in casual employment and receives an unemployment benefit supplement. He has honourably, apparently, carrled out hls

obligations as a citizen since arrivlng in this country and has

certainly been a caring and solicitous husband to hls wife and parent to

hls very large famlly. The evidence before the Tribunal reveals that without his support, his famlly in Vletnam would be destltute and

perhaps would not survive long enough	for any questlon of their arrival
m Australia to be contemplated.

It seems to me that he would, upon the arrlval of the family In

Australia and even before and without their arrival, always be seeking

as much work as he could obtain in order to sustain them. If the

Department was so minded, It could either seek access to repayment per

medium of the unemployment benefit that he was receivlng, or such part

of it as it thought ought to be deducted for the purpose of repaying any

overpayment of family allowance. Alternatively, it could seek to

garnlshee hls wages as a casual or permanent employee. If he was

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receiving part beneflt and part wages, the Department would have access

to both sources of funds. Other than the argument, nothing has been

advanced to suggest that it is appropriate to speculate adversely to th

respondent's honour in this case, apparently not the first case of its

kind in which the department has had to consider such questions. The

evidence available to me suggests the opposite.

In these circumstances it seems to me, on balance, that the decision of

the Tribunal should not be stayed. I take into account the fact that it

does not look likely that this appeal can be heard until the passage of

several further months. However, the Department itself took some nlne

months from the tlme of recelpt of the recommendations of the Soclal

Securlty Appeals Tribunal to decide that the recommendations of that

body were not going to be accepted. I think in the circumstances It

should therefore bear whatever risks are involved in the payment of the

family allowance flowing from the views under appeal.