. »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 brought under s.44 of the Administrative Appeals Tribunal Act 1975 (Cth), raises points of law only. Until 5 September 1985, s.95(1) of the Social Security Act 1947 (Cth) ("the Act") provided as follows:- "95. (1) Subject to this Part, a person who has the custody, care and control of a child (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 this section." After amendment by Act No. 95 of 1985, the Act provided:- "6. (1) In this Act, unless the contrary intention appears - 'dependent child', in relation to a »verson means — (a) a child under the age of 16 years who - (1) is in the custody, care and control of the person; or (11) 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 1s wholly or substantially dependent upon the person; (1A) For the purposes of the definition of 'dependent child' in sub-section (1), a person shall not be taken to have the custody of a child unless the person, whether alone or jointly with another person, has the right to have, and to make decisions concerning, the daily care and control of the child. 95. (1) Subject to this Part, a person who has a dependent child or an institution of which children are inmates 1s qualified to receive a family allowance in respect of each such child in accordance with this section. 96. (1) Subject to section 104, a family allowance shall not be granted unless - (a) (b) the claimant (not being an institution) - (1) 1s in Australia; and (11) 21£ not born in Australia, has, during the period of 12 months immediately preceding 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 - (i) is living in Australia, whether or not he 1s temporarily absent from Australia; and (11) 1f£ not born in Australia, has, during the period of 12 months immediately preceding the date on which the claim was lodged, been resident in Australia. (5) Where - (a) (b) (c) a person makes a claim for a family allowance that relates to a dependent child who is living 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 1s satisfied that it" is likely that the person will bring the child to live in Austrlia on or before that day, paragraph (1)(b) does not apply to the claim for family allowance. (7) Subject to sub-section (8), the relevant day, for the purposes of sub-section (5), in relation to a person in respect of a child, is the day that falls on the fourth anniversary of the earliest day that was a day on which - (a) the person was living 1n Australia; and (b) the child was living outside Australia; and (c) the child was a dependent child of the person. 105. A family allowance shall be applied, by the person, institution or authority to whom 1t is payable to the maintenance, training and advance of the child in respect of whom it 1s granted." The respondent, Van Luc Ho, lived in Vietnam with his 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 remainder of his children to Australia as soon as 1t could be arranged. He continued to support his family in Vietnam by sending medical supplies and gold and, by the time of the hearing before the Tribunal, had sent to Vietnam goods worth more than $8,000.00. He and his wife communicated regularly by letter and, in accordance with the custom of Vietnamese families, Mr Ho's advice and direction were obtained with respect to all matters of major importance in the children's lives. The wife and children have, however, been unable to obtain exit visas to leave Vietnam. 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 13 September 1984, The Administrative Appeals Tribunal held, on the evidence before it, that the cancellation was wrong. The Tribunal concluded that the children in Vietnam had remained in the custody, care and control of Mr Ho at all times. He was entitled to family allowance in respect of all the children save that, as from 13 September 1985, there was an issue arising as to whether the two elder children in Vietnam, who were then over the age of 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 inflexible 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 for the Maintenance, training or advancement of the child in respect of whom it 1S paid. The sections do not provide for an allowance in respect only of children who are cared for in a particular Way. The allowance is payable either to a person who has a dependent child or to an institution 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 ambit of the provisions is, however, limited by residential qualifications with respect to the claimant and to the children. In this context, the words "custody, care and control" must be glven an interpretation which encompasses the multitude of clrcumstances in which children 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 living 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 responsibility for raising the child is left to one parent or both share that responsibility. "Custody" in the strict common law sense referred not to actual, physical custody but to the right 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, which is, that the father has the control over the person, education, and conduct of his children until they are twenty-one years of age." 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 Wisbech Area Health Authority {1985] 3 All E.R. 402 at 419 Lord Scarman said:- "In this appeal, therefore, there is much in the earlier case law which the House must discard; almost everything I would say but 1ts principle. For example, the horrendous Agar-Ellis decisions (Re Agar-Ellis, Agar-Ellis v. Lascelles (1878) 10 Ch D 49, (1883) 24 Ch D 317) of the late nineteenth century asserting the power of the father over his child were rightly remaindered to the history books by the Court of Appeal in Hewer v. Bryant [1969} 3 All ER 578, [1970] 1 OB 357, 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. Parental rights relate to both the person and the 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 capacities 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 [1970] 1 0.B. 357 at p.369, Lord Denning M.R. referred to the right of custody as a :- " ... dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he 1s. 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 Mr 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 "... 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 Denning M.R. have been approved in subsequent decisions. At pp.369-370 Lord Denning said:- "However, I will not pursue this 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 24, 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 otherwise. My conclusion 1s that an infant 1s '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 accident. I stress the word 'effective' because 7 am firmly of opinion that Parliament must have had in mind a parent so circumstanced that 1t can be confidently expected that he will take whatever action is necessary or desirable on behalf of the infant: so much so that, 1f the parent fails to take action, the blame falls on him, and on no one else." Subsequently, in Todd v. Davison [1972] A.C. 392 at pp.400-401, Lord Morris said:- "In careful and learned arguments your Lordships were referred to a variety of recent legislative provisions relating to the welfare, the custody, the protection and the guardianship of infants and, in particular, to references in those provisions 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, 1n my view the words ''1n 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 [1970] 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 [1970] 1 Q.B. 357 to the effect that an infant 1S in the custody of a parent if he 1s 1n point of fact in the effective care and control of a parent at the time of the accident: 1t 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 describe an existing state of affairs pointing 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 that the learned judge 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 [1970] 1 9.B.357, 369)." And at p.408, after referring again to Lord Denning's judgment in Hewer v. Bryant, His Lordship said:- "When he spoke of the 'effective care and control of a parent,' I think he was contrasting real actual custody with legal custody which 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 time 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 child, it does not follow that he has actual custody, the care and control of the child. Under section 5 of the Guardianship of Infants Act 1886, he may be given the custody, but it may be ordered that the infant shall not be removed from the care and control of the mother without the leave of the court: In re W. (An Infant) [1964] Ch.202. In the Divorce Division it 1s a common practice to give custody to a father while ordering that the infant 1s to remain in the care and control of the mother." Lord Pearson expressed a similar view and, at p.412, said:- ll. "An infant or person of unsound mind 1s in the custody of a person who has him in charge and is looking after him." Lord Diplock expressed his acceptance of these views. : Likewise, the expression "custody, care and control" in the Act points to the person who 1s or persons who are looking after, taking care of and controlling the child or, to use the words of Lord Pearson, "who has [or have] him in charge and 1s [or are] looking after him." This interpretation 1s reinforced by the reference in s.6(1A) 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 their responsibilities to another. They direct attention to the person who has or persons who have in a factual sense the responsibility for the ongoing care of the child and who exercises or exercise that responsibility. Lord Denning referred to "effective 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 child of the wife and not of the husband. So, in the usual case, the family allowance 1s paid to the wife. Section 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 Security 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 mind 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), [1964] 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 [1944} 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 to 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 1f the child were not in the custody of his father 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 [1967] 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 enjoyed economic independence from his parents and freedom to live anyway he chose. In Duncan v. Lambeth London Borough Council [1968] 1 Q.B. 747, 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 1n the care and possession of" in the Adoption Act 1958 (U.K.) were held in In re B (An Infant) [1964] Ch. 1 to be satisfied notwithstanding that the unmarried mother, a nurge, 14. lived 1n at a hospital and left her child on an average 4 days and 5 nights per week with a married couple who lived 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 effectively controlled any aspect of the child's life and, if so, was such control exercised and enjoyed with the consent and authority of the applicant or otherwise? During the applicant's periods of duty Mr. and Mrs. B have, or one of them - and doubtless it has usually been Mrs. B - has had the physical care and control of the child and been obliged to make the constant transient decisions which are involved in looking after and controlling a small child. This function, however, has been performed on the applicant's behalf and 1n 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.) 61. His Lordship also referred to In re C.S.C. (An Infant) [1960] 1 W.L.R. 304. Of these decisions, the most relevant is In re X.Y., Petitioners of which his Lordship said, at p.6:- "In In re X.Y., Petitioners, the applicants were a husband and wife. The child was an illegitimate child of the wife. Shortly after the presentation of the petition to the court the husband left for Canada with a view to establishing a permanent home there for his family and himself and at the date of the hearing he had been in Canada for over two months. The child remained meanwhile in this country with the wife. The application was refused on account of the husband's absence. In the course 15. of his judgment the sheriff-substitute said: 'The child may be 1n 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 1s not so here.'" I mention these cases by way of illustration. They provide general guidance. However, as the object 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 decisions of the Administrative Appeals Tribunal,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 Hallowes:- "'TClustody, care and control' 1s 'a composite expression referring essentially to the responsibility for the actual day to day Maintenance, training and advancement of the child'. The Act looks to a person who has the responsibility for the care of the child and exercises that responsibility. Clearly, since the introduction of s.6(1A) the adoption of that responsibility must be lawful .... The Act 1s not concerned primarily with the niceties of the commén 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 responsibility for and exercises responsibility for the welfare of a child. 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, 1n s.96, expressly makes provision with respect to a dependent child who 1s living outside Australia." In this appeal, neither 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 that a person could retain 'custody, care and control', notwithstanding that that person had delegated some aspect of 1t to others. The issue of delegation was taken up by an officer of the Department in a letter of advice, document T25, to 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 Ta. However, we would take a different approach to the relevance of delegation. All parents delegate aspects of their custodial, caring and controlling role to others. Some delegate more than others. In some families, the parents or parent might be completely engrossed in 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 traditional paternal role to the mother, or vice versa. But the nature, circumstances, and extent of the delegation 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 delegation respected. We would say, with the greatest respect to Deputy President Hall in Ta, that the question 1s not ultimately whether the applicant has the 'custody, care and control' of his children but ultimately, whether he has retained parental sovereignty and autonomy notwithstanding his indefinite separation 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 joined 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 continually 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 (1f any); . this care be demonstrated by his ongoing provision of significant material and emotional support." The import of this reasoning 1s difficult to determine for the Tribunal did not hold that Mr Ho had in fact delegated any authority to his wife and did not base its decision 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 18. have enunciated and which was enunciated in Re Ta and Director-General of Social Security and in Re Le and Secretary to the Department of Social Security. As the issue 1s 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 of authority are obviously relevant. Why did 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 1ssue. 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 his 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 1s caring for the child, who has undertaken that responsibility. The words "sovereignty and autonomy" import concepts of entitlement whereas the family allowance provisions are concerned with 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 President Hall in Ta, ... the question is not ultimately whether the applicant has the 'custody, care and control' of his children " eee That is the test laid down by the legislation and Deputy President Hall in Re Ta was correct in applying 1t. The Tribunal was ln error when it went on to say that the true question was ",.. ultimately, whether he has retained parental sovereignty and autonomy notwithstanding his indefinite separation from his wife and children ..." The Act does not adopt "parental sovereignty and autonomy" as its test for family allowance. The Tribunal laid 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 indicia are not specified by Parliament. The legislative criteria 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 decision 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 Vietnam and that the Court should make an order affirming the decision Which had been under review by the Administrative Appeals Tribunal. 20. However, I do not see the matter in such clear terms. The circumstances which justify a finding 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 this Court. The decision under appeal will therefore be set aside. The matter will be remitted to the Administrative Appeals Tribunal for rehearing according to law. I certify that this and the 14 preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Davies. Associate: J @-cctdes> Date: 7 Octeta, 1987 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 hearing: 29 September 1987