Parnell-Schoneveld v Repatriation Commission

REASONS FOR JUDGMENT Introduction 1 In each of these matters the applicant appeals against a decision of the Administrative Appeals Tribunal, Veterans' Appeals Division ("the Tribunal") given on 4 October 2002. The appeals are brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) under which an appeal lies to this Court on a question of law from a decision of the Tribunal. 2 The applicant in N 1148 of 2002 ("Mrs Parnell-Schoneveld") and the applicant in N 1149 of 2002 ("Mrs Parnell") are sisters-in-law. They sought compensation from the respondent ("the Commission") under the provisions of the Compensation (Japanese Internment) Act 2001 ("the Act"). Mrs Parnell-Schoneveld sought compensation on the basis that she was a civilian who had been interned by the Japanese during World War II. Mrs Parnell sought compensation on the basis that her late husband ("Mr Frank Parnell") had been interned. 3 One of the conditions for eligibility for compensation under the Act is that the internee must have been domiciled in Australia immediately before the commencement of the internment. 4 The Commission rejected the applicants' claims for compensation on 20 September 2001. The applicants sought a review of the Commission's decisions from the Tribunal which affirmed the decisions of the Commission on 4 October 2002. 5 The applications made by Mrs Parnell-Schoneveld and Mrs Parnell for review by the Tribunal were heard together with a third application which was brought by a sister of Mrs Parnell-Schoneveld, Mrs Burgman. The evidence in each application was evidence in the other before the Tribunal. All three applications for review were dismissed by the Tribunal. Mrs Burgman has not appealed against the decision. 6 The only issue before the Tribunal was whether Mrs Parnell-Schoneveld and Mr Frank Parnell were domiciled in Australia immediately before the commencement of the internment. The Tribunal was satisfied that they were not. The essential question which arises on the appeal is whether the Tribunal made an error of law in reaching that finding. The Statutory Provisions 7 The relevant conditions for eligibility for compensation under the Act are found in subsections 4(2) and (3) of the Act, which provide as follows:- "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 a 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." 8 The amount of compensation is a "one-off" payment of $25,000; see s 5 of the Act. The Facts 9 Mrs Parnell-Schoneveld and Mr Frank Parnell were born in Australia in June 1926 and February 1925 respectively. Mrs Parnell-Schoneveld was born approximately 4 months after the date on which her father ("Mr Parnell Sr") was killed in a car accident. 10 Mr Parnell Sr was domiciled in Australia. So too, at least until 1930, was Mrs Eileen Frances Parnell ("the mother"), who was the wife of Mr Parnell Sr and the mother of Mrs Parnell-Schoneveld, Mr Frank Parnell, Mrs Burgman and another child of the marriage, Ms Bernadette Parnell. I will refer to the 4 children collectively as "the Parnell children". 11 In 1930 the mother took the Parnell children on a cruise from Sydney to Singapore. There, in October 1930, she married Mr CJG Keyzer who was born in Holland and was a Dutch citizen. 12 It was agreed between the parties on the appeals that there was evidence in Mrs Burgman's application before the Tribunal which disclosed that Mr Keyzer was a merchant seaman. It appears that he met the mother in Australia in the late 1920s after the death of Mr Parnell Sr. However, the Tribunal found that Mr Keyzer had not lived in Australia prior to the time when the family was interned. 13 In 1931, after her marriage to Mr Keyzer, the mother and her new husband and the Parnell children moved from Singapore to Batavia which was then the capital of the Netherlands East Indies where Mr Keyzer was based. 14 The Tribunal found that from 1931 to 1942 Mr and Mrs Keyzer and the Parnell children lived in Batavia as a family. There were two children of the mother's marriage to Mr Keyzer who lived with them. The Tribunal referred to evidence that the Parnell children lived in Batavia and went to school there; see at [11] and [12]. 15 There was evidence before the Tribunal that the Parnell children kept their family name and that they received some financial support from Mr Parnell Sr's brothers who apparently ran a farm in Australia which had been owned by Mr Parnell Sr. 16 Mrs Parnell-Schoneveld gave the following evidence to the Tribunal: "After she married Mr Kaiser (sic) and you were living in Singapore and then in what is now known as Jakarta, you kept your name, Parnell? --- Yes, always. Yes and that's how you were known at school? --- Yes, we were always known. You understand, from what you've been told, that you were supported by way of a cheque that was sent from your deceased father's brothers?---That's right, yes. That continued all the way through until World War II? - '42, yes. You were about 16, is that right, when the Japanese arrived?---About 15 going on 16, yes. You were still at school then?---We were, yes, at school. Do you remember if there was any future planned for you after you finished school? --- Well, as far as I understand it we were going to be sent back to Australia because the property was still there and Frank eventually inherited it and we would pick up our lives back in Australia. That was certainly, as you understood it, when you were 15?---Yes, I remember seeing the brochures of the schools our mother had booked us into. You understood that you were booked into the Sacred Heart Convent at Rose Bay?---At Rose Bay, yes. From what you know that's where all the Parnell girls were educated ultimately?---Yes." 17 The reference to "the Parnell girls" was not to Mrs Parnell-Schoneveld and her sisters. It was a reference to a tradition of sending the young women in the Parnell family to the Rose Bay Convent. 18 Mrs Parnell-Schoneveld also gave the following evidence about Mr Frank Parnell. "Was it always known to you as children that Frank was going to inherit the farm?---Well, we didn't then, we were very young at the time you know. What about in '42?---No, I have no idea, I couldn't answer that. Frank was booked to come back with you?---Yes. He was going to Riverview?---Riverview College, yes. He returned with you to Brisbane?---Yes. When you were elected?---Yes, that's right. He ultimately did inherit the farm and worked the farm for a few years. Is that right?---That's right." 19 Mrs Parnell-Schoneveld gave other evidence, to which the Tribunal referred, that when the War broke out in the Pacific, ie December 1941, the mother was arranging to send the children to boarding school in Australia; see at [13]. Mrs Parnell-Schoneveld's evidence was that the children were booked on a ship to return to Australia but it was too late to embark as the Japanese had by then entered the Netherlands East Indies. 20 The Japanese Army occupied Batavia in March 1942. Mrs Parnell-Schoneveld was then 15 years of age and Mr Frank Parnell had just turned 17. The Parnell children and their mother were interned by the Japanese on the Island of Java for approximately 3 years. Domicile 21 The term "domicile" is not defined in the Act. The Domicile Act 1982 (Cth), which modified the common law, is not applicable as it is not concerned with the domicile of a person before the commencement of the legislation. Accordingly, the Tribunal proceeded upon the basis that the application was governed by the common law test of domicile; see at [14]. The parties accept that this is the correct approach. 22 The parties also accept that the relevant principles were correctly stated, with one exception, by the Tribunal at [15] - [19]. The principles may be summarised as follows:- · at birth legitimate children acquire the domicile of their father · a domicile of choice is acquired if a person resides in a country and intends to remain there indefinitely · a person is only able to acquire a domicile of choice if that person has attained the age of 21 · a woman on marriage assumes the domicile of her husband · a domicile of a child whose father is no longer alive is primarily dependent on that or his or her mother who has the option of changing the child's domicile when she changes hers but she may abstain from exercising that option if this is for the welfare of the child. 23 The only principle with which the applicant disagreed was that which is stated in the last bullet point in [22]. The Decision of the Tribunal 24 The Commission accepted that the domicile of origin of Mrs Parnell-Schoneveld and Mr Frank Parnell was Australia. This was because Mr Frank Parnell was born during his father's lifetime and acquired his domicile while Mrs Parnell-Schoneveld was born after her father's death and acquired her mother's Australian domicile. 25 The Commission submitted in its argument to the Tribunal that the effect of the mother's marriage was that she acquired Mr Keyzer's domicile, which although not determined, was conceded by the parties as not Australian. 26 Mrs Parnell-Schoneveld and Mrs Parnell submitted before the Tribunal that there was no evidence of any intention of the mother to change the domicile of her children and that the proper test to be applied was that there needed to be evidence of such an intention; see at [23]. They referred to Hyland v Hyland (1971) 18 FLR 461 and Henderson v Henderson [1965] 1 All ER 179. 27 The applicants' case in the alternative before the Tribunal was that if the Parnell children's domicile followed that of the mother after her marriage to Mr Keyzer, then the evidence of arrangements made by the mother in late 1941 or early 1942 to send the Parnell children to Australia indicated a positive choice to change that domicile back to Australia. 28 The Tribunal made the following critical finding at [25]:- "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." 29 The Tribunal went on to find at [26] that there was no evidence that when she assumed Mr Keyzer's domicile, the mother abstained from exercising her option of causing the Parnell children's domicile to follow her own. Reference was made to the decisions in Re G [1966] NZLR 1028 and Re Beaumont [1893] 3 Ch 490. 30 The Tribunal said that it was satisfied that the Parnell children's best interests were to the effect that, on their mother's remarriage, their domicile should follow hers, which it did; see at [27]. 31 The Tribunal stated at [28] that the proper question to be determined was what evidence existed to show that the mother did not intend the Parnell children's domicile to follow hers for their own wellbeing. 32 At [29] the Tribunal made a finding that even if the mother made arrangements in late 1941 or early 1942 for the Parnell children to go to boarding school in Australia, a domicile of choice is not acquired merely by living in a place for a temporary purpose such as education. In my view, this was a finding of fact that it was the mother's intention to send the Parnell children to Australia merely for the completion of their education. 33 The Tribunal concluded its decision as follows: "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." (at [30]). Submissions on the appeal 34 The substance of the submissions of counsel for the applicants was that the Tribunal asked itself the wrong question and applied the wrong test. This was because it was said that the Tribunal looked for evidence to show that the mother did not intend her children's domicile to follow hers. Rather, the question was whether there was evidence of an intention to change the children's domicile. 35 As to the finding quoted at [28] above, the applicants' counsel submitted that there was no evidence to support it. 36 Counsel for the applicants also submitted, in the alternative, along the lines of the case conducted in the Tribunal, that the evidence of arrangements made in late 1941 or early 1942 to send the children back to Australia constituted a change of the domicile of Mrs Parnell-Schoneveld and Mr Frank Parnell back to Australia. Decision 37 At common law, clear evidence is required to establish a change of domicile and this is particularly so to displace the domicile of origin with a domicile of choice. Residence, however long, which is "neutral or colourless or indeterminate in character" is not sufficient. On the other hand, a mere "floating intention" to return to the country of origin will not be sufficient to retain a domicile of origin if a person has settled elsewhere with an intention to remain for an indefinite period of time; see Henderson at 181. 38 Re Beaumont and Re G are authorities for the proposition that a dependent child does not take the domicile of choice acquired by his or her widowed mother on her remarriage unless the mother so intends in the best interests of the child. As Sterling J said in Re Beaumont at 497, the widowed mother may abstain from exercising her power to change her children's domicile even when she changes her own. 39 The effect of the authorities referred to at [37] and [38] is that the proper question which the Tribunal had to ask itself was whether the mother had, by her marriage to Mr Keyzer and her residence in Batavia, evinced an intention to change the domicile of Mrs Parnell-Schoneveld and Mr Frank Parnell to the Netherlands East Indies in the interests of her children. 40 The statement of the question referred to at [31] above suggests that the Tribunal did not ask itself that question initially but looked for evidence to show that the mother did not intend to change the children's domicile of origin. 41 However, in my view, on a fair reading of the whole of the Tribunal's reasons, including the whole of the passages quoted at [28] and [33], the Tribunal made all of the requisite findings to satisfy the correct test which it applied. 42 These findings appeared in particular in [25] and [30] of the decision of the Tribunal. There, the Tribunal found that the mother was adopting the Netherlands East Indies as her and her children's place of residence with the intention of remaining there indefinitely. Moreover, she made that decision for her own benefit and for the wellbeing of the children. These findings were, to use the language of the Tribunal, "a positive determination" that she had altered the domicile of choice of the Parnell children. This indicates that the Tribunal was not looking for evidence that the mother had abstained from exercising her option. Instead it shows that the Tribunal looked for and found actual evidence that she had made the choice. 43 Although the passage which I have set out at [28] appears before the Tribunal's reference to the "proper question", it seems to me that the findings in the quoted passage reflect the conclusions which the Tribunal reached at the end of its reasoning process. In my view, this is confirmed by what the Tribunal said in the passage which I have quoted at [33]. 44 It seems to me that these were findings which the Tribunal was entitled to make on the evidence before it namely that the mother had lived with her second husband and the Parnell children in Batavia, sent them to school there rather than in Australia and had two more children who lived with them as one family. This period of residence in Batavia was not "neutral or colourless or indeterminate". The submission that there was no evidence to support this finding fails. 45 Reference was made to ss 119(1)(g) and (h) of the Veterans' Entitlements Act 1986 (Cth) ("the Veterans' Act"). Those subsections provide for the Commission to act according to the substantial justice of the case and to take into account any difficulties that lie in the way of ascertaining the existence of a fact due to the passage of time. 46 Section 119(1)(g) of the Veterans' Act did not permit the Tribunal to disregard the statutory criteria; see Grundman v Repatriation Commission [2001] FCA 892 at [33] per Gray J; referred to with approval by Mansfield J in Roncevich v Repatriation Commission [2002] FCA 1458 ("Roncevich") at [30]. As Mansfield J said in Roncevich at [30], the same approach applies to s 119(1)(h). That subsection lowered the standard of proof but it did not enable the Tribunal to ignore the clear inferences arising from the circumstances in which the family lived in Batavia in the absence of some evidence which negated the inference that the mother intended to reside there with her children indefinitely. The Tribunal, as it was entitled to do, found that there was no evidence to negate that inference. 47 The alternative case, namely that there were arrangements to return the Parnell children to Australian when the war broke out, failed before the Tribunal upon the ground that a domicile of choice is not acquired merely by living in a place for a temporary purpose such as education. 48 The Tribunal made a finding of fact as to the mother's intentions. The fact that there may have been some evidence before the Tribunal to support an alternative finding does not allow this Court to set aside the Tribunal's decision. This finding is not open to challenge on an appeal limited to questions of law. 49 In any event, neither Mrs Parnell-Schoneveld nor Mr Frank Parnell actually arrived in Australia in 1942. It follows that one of the elements of change of domicile, ie, taking up residence in Australia, was not established. 50 The only authority cited by the parties on this question was Halsbury's Laws of England 4th ed 1996, Vol 8, Conflict of Laws. The passages appearing at pars 686 and 687 support the proposition that in order to acquire a domicile of choice a person must have actually resided there. Orders 51 The orders I propose to make are that the applications are dismissed with costs. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.