Department of Social Security v. Ho, V.L. [1987] FCA 568

. »SUDGMENT No. 5084.81

CATCHWORDS

APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL - Family Allowance - children living 1n Vietnam - meaning of "custody, care and control" - factual test - test of parental

sovereignty and autonomy not appropriate.

Social Security Act 1947 (Cth) ss.6(1), 6(1A), 94(2), 95, 96, 99A, 105.

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

SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY v. VAN LUC HO NSW G620 of 1986

Davies J. 27 October 1987 Sydney.

[7 ty

27 OCT 1987

IN THE FEDERAL COURT OF AUSTRALIA

) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G620 of 1986 ) )

GENERAL DIVISION

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY Applicant AND: VAN LUC HO Respondent

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

MINUTES OF ORDER

THE COURT ORDERS THAT:

l. The appeal be allowed.

2. The decision under appeal be set aside.

3. The matter be remitted to the Administrative Appeals Tribunal for rehearing according to law. i

NOTE: Settlement and entry of orders 1s dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) )

NEW SOUTH WALES DISTRICT REGISTRY ) No. G620 of 1986 ) )

GENERAL DIVISION

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY Applicant AND: VAN LUC HO Respondent

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

REASONS FOR JUDGMENT

This is an appeal from a decision of the Administrative Appeals Tribunal which set aside a decision that family allowance not be paid to the respondent, Van Luc Ho, in respect of certain of his children in Vietnam and which remitted the matter to the applicant for reconsideration in accordance with the Tribunal's view that family allowance should be paid. The appeal, which is