Social Security Act 1947 sub-ss.3(2), 6(1) (as at 1 August 1983 and 28 October 1985), 28(1B) (as at 1 August 1983 and 28 October 1985), s.58, para.60(1)(a) (as at 28 October 1985), s.82, sub-s.83AAA(1) (as at 28 October 1985), ss.86, 93, sub-s.96(5)

Social Security and Repatriation Legislation Amendment Act 1985

Social Security and Repatriation (Budget Measures) Amendment Act 1985

Australian Goat Exporters Pty. Ltd. v. Australian Meat and Livestock Corporation (1981) 4 ALD 258

Brown v. The Repatriation Commission [1985] FCA 194; (1985) 7 FCR 302

Commissioner of Taxation v. Brixius (1987) 16 FCR 359

Re Costello and Secretary, Department of Transport (1979) 2 ALD 934

Fountain v. Alexander [1982] HCA 16; (1982) 40 ALR 441

Re Le and Secretary to the Department of Social Security (1984) 6 ALD 633

McKenzie v. Secretary, Department of Social Security, Unreported (Federal Court of Australia, Full Court, 2 June 1989)

Secretary, Department of Social Security v. Field, Unreported (Federal Court of Australia, Full Court, 29 August 1989)

Secretary, Department of Social Security v. Van Luc Ho (1987) 17 FCR 582

Re Ta and Director-General of Social Security (1984) 6 ALD 633

Van Cong Huynh v. Secretary, Department of Social Security (1988) 79 ALR 61

Waterford v. Commonwealth of Australia [1987] HCA 25; (1987) 61 ALJR 350

Williams v. Town of Claremont (1976) WAR 125

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr S.A. Walker

Solicitor for the Respondent: Mr S.A. Walker

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") which set aside the decision of a delegate of the applicant made on 1 August 1985 as to the amount of pension payable to the respondent pursuant to the provisions of the Social Security Act 1947 (Cwth) ("the Act").

2. Pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 (Cwth), an appeal to this Court may be brought only on a question of law.

"The existence of a question of law is not merely a

qualifying condition to ground an appeal from a

decision of a Tribunal; rather, it and it alone is

the subject matter of the appeal, and the ambit of

the appeal is confined to it."

(Brown v. The Repatriation Commission (1985) 7

FCR 302 at p 304; see also Commissioner of

Taxation v. Brixius (1987) 16 FCR 359 at

pp 363-365.)

3. The respondent contended that the appeal did not raise a question of law and it will be necessary to return to that submission later in these reasons.

4. The decision of the Tribunal was delivered on 4 August 1988.

5. Between 1 August 1985 and 4 August 1988, substantial amendments were made to the Act, in particular to sections pertinent to the delegate's decision. The question arises, therefore, whether the Tribunal's review of the decision involved consideration of the amount of an accrued entitlement or a determination of whether the applicant had a present entitlement to the grant of a right or privilege at the date of review - or both. (See Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 at pp 943-944.)

6. The decision of the delegate on 1 August 1985 determined that the respondent had been entitled to an invalid pension from the date of her application, 27 June 1985. Therefore, at the time the decision of the delegate was reviewed by the Tribunal, the process of review involved consideration of two elements. Firstly, what amount of pension should have been paid to the respondent from 27 June 1985 to 5 September 1985, the date of operation of relevant amendments to the Act and as at the date of review what was the respondent's entitlement to the component of pension payable for a dependent child after 5 September 1985. (See Australian Goat Exporters Pty. Ltd. v. Australian Meat and Livestock Corporation (1981) 4 ALD 258.) As to effect of amending statutes see McKenzie v. Secretary, Department of Social Security, Unreported (Federal Court of Australia, Full Court, 2 June 1989).

7. The respondent lives at an Aboriginal mission at Daly River in the Northern Territory. In the early 1970s the respondent had moved from the Northern Territory to Western Australia to obtain employment. She took her daughter Tessa with her who had been born in 1969. The respondent was employed on a cattle station near Derby and then employed as a cook at an Aboriginal mission conducted by the Seventh-Day Adventist Church near Meekatharra. The respondent suffered from epilepsy requiring daily medication. In about November 1974, because of the combined circumstances of illness, epilepsy and pregnancy, the respondent was required to travel to Perth to undergo medical tests and treatment. A teacher at the mission whose mother, Mrs Wareham, had visited the mission and met the respondent, arranged for Mrs Wareham, who lived in Perth, to provide accommodation for the respondent whilst she was in Perth. The respondent lived with Mrs Wareham for almost two years. She attempted to obtain accommodation from the State Housing Commission but to no avail. Because of her epileptic condition she had been advised by medical practitioners that she should not live alone under any circumstances. Any offer of accommodation received from the State Housing Commission was on condition that no other adult person shared that accommodation.

8. The respondent gave birth to a daughter Loanne in January 1975. The respondent and Loanne lived with Mr and Mrs Wareham until September 1976. The respondent's daughter Tessa was placed with the Eaton family in an outer suburb of Perth when the respondent left Meekatharra. Mr and Mrs Wareham, Mrs Wareham's daughter and Mr and Mrs Eaton were all members of the Seventh-Day Adventist Church.

9. Whilst the respondent lived with Mr and Mrs Wareham, she maintained contact with her daughter Tessa by weekend visits, and during school holidays Tessa would live with the respondent in the Wareham's home.

10. By September 1976 it became obvious to the respondent that she would not be able to get accommodation in Perth and she decided to return to the Northern Territory. Her daughter Loanne was then nineteen months old. The respondent approached Mrs Wareham and asked if she and her husband would care for her child and arrange for her to be educated in the Seventh-Day Adventist school in Perth. The respondent asked Mrs Wareham to look after her daughter until she had finished school. The Seventh-Day Adventist Church conducted a secondary school at which boarding facilities were provided and it was intended that the respondent's daughter would become a boarder at the school after she had finished her primary education. It was also arranged between the respondent and Mrs Wareham that Mrs Wareham's daughter who was then engaged to be married, would, after her marriage, take over the care and boarding of Loanne for the respondent.

11. Mrs Wareham looked after Loanne until she was two and a half years old. Since May 1977 Loanne has been in the care of Mrs Wareham's daughter Mrs Smith.

12. From July 1973 the respondent had been paid a supporting parent's benefit pursuant to the Act. The benefit paid included a component for the child Tessa and subsequently an additional component for the child Loanne. Pursuant to the Act, such added components of benefit were payable to a parent if the parent had the custody, care and control of a child under sixteen years of age.

13. From 1978 and perhaps from an earlier date, the applicant was aware that the respondent had returned to the Northern Territory to live and that her children Tessa and Loanne were being cared for under private fostering arrangements by the Eaton and Smith families respectively. For some time prior to May 1978, a family allowance was paid to the Eaton family pursuant to the Act and a like allowance was paid to the Smith family from February 1978. Pursuant to the Act as it then stood (s.95), such an allowance was payable to a person who had the custody, care and control of a child.

14. The applicant was also aware from advice provided by Mrs Wareham that the respondent was not literate and that Mrs Wareham would respond on her behalf. The applicant was informed that Mrs Wareham operated a bank account for the respondent into which the supporting parent's benefit was paid each fortnight and a fortnightly amount withdrawn out of which contributions for the upkeep of the respondent's two children were forwarded to the Eaton and Smith families respectively and the balance of the drawing forwarded to the respondent in the Northern Territory.

15. Tessa returned to the Northern Territory each year to see her mother and from the age of about seven Loanne also visited her mother annually for a school holiday period. The air fares for Loanne were met by the respondent by withdrawals from the funds standing to her credit in her bank account, such withdrawals being effected by Mrs Wareham. After the termination in 1985 of the supporting parent's benefit paid to the respondent, Mrs Wareham met the cost of air fares for Loanne.

16. On 13 May 1985 a decision was made that the respondent had no children in her custody, care and control and the supporting parent's benefit was terminated. The respondent was invited to apply for an invalid pension. She did so and the pension was granted from 27 June 1985. The amount of pension paid thereafter did not include any amount for a child in her custody, care and control or for a dependent child.

17. In reviewing that decision, the Tribunal had regard to the relevant documents on the applicant's file and heard evidence from the respondent (by telephone and through an interpreter), Mrs Wareham and Mrs Smith. The Tribunal noted that there was no challenge to the evidence received by the Tribunal.

18. As at 1 August 1985, the relevant provisions of the Act were sub-s.28(1B):

"28(1B) Where a person has the custody, care and

control of a child or children under the age of 16

years, the maximum rate of pension applicable to

that person under sub-section (1A) shall, subject

to sub-sections (1C) and (1D), be increased, or,

if sub-section (1AA) applies to the person, be

further increased by $728 per annum in respect of

each child."

19. On 5 September 1985, the Act was amended by the Social Security and Repatriation Legislation Amendment Act 1985 by the insertion of the following definitions into sub-s.6(1) of the Act:

"'child' means a person who -

(a) is under the age of 16 years; or

(b) is a student child;"

...

'dependent child', in relation to a person means-

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

(i) is in the custody, care and control of

the person; or

(ii) 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 (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."

(The amendments now appear in the Act as part of sub-s.3(1) and as sub-s.3(2) respectively.)

20. On 28 October 1985 the Act was amended by Social Security and Repatriation (Budget Measures) Amendment Act 1985 (Cwth) by substituting the following sub-section for sub-s.28(1B):

"(1B) Where a person has a dependent child or

dependent children, the maximum rate of pension

applicable to that person under sub-section (1A)

shall, subject to sub-sections (1C) and (1D), be

increased or, if sub-section (1AA) applies to the

person, be further increased by -

(a) $832 per annum in respect of each

dependent child who is not a prescribed

student child of the person; and

(b) $728 per annum in respect of each

dependent child who is a prescribed

student child of the person."

By Schedule 4 of that amending Act, sub-s.28(1B) of the Act (now sub-s.33(3)) was amended by deleting the words:

"The custody, care and control of a child or

children under the age of sixteen years."

Similar amendments were made to para.60(1)(a) (widow's pension - now s.44), sub-s.83AAA(1) (supporting parent's benefit - now s.53) and sub-s.95(1) (family allowance - now s.80).

21. The amendments to the Act in 1985, set out above, have been accepted as a confirmation of the view that the "custody, care and control" referred to by the Act before amendment was a reference to actual or factual custody and not simply legal custody in the common law sense. (See Re Ta and Director-General of Social Security (1984) 6 ALD 633; Re Le and Secretary to the Department of Social Security (1986) 11 ALN N.6; Secretary, Department of Social Security v. Van Luc Ho (1987) 17 FCR 582 per Davies J. at pp 586, 589-591.) However, that view needs to be reassessed in the light of the recent decision of the Full Court in Secretary, Department of Social Security v. Field, Unreported (Federal Court of Australia, 29 August 1989).

22. Actual custody may be the actual exercise of care and control and be tantamount to a right to exercise such care and control. Legal custody is multi-faceted and includes the right of care and control, although it may not be actually exercised day-to-day as Gibbs C.J. stated in Fountain v. Alexander [1982] HCA 16; (1982) 40 ALR 441 at p 447:

"In the present case the plaintiffs seek orders for

wardship, and for the care and control of the

child. The latter claim is clearly a claim for a

limited form of custody, ie for what might be

described as actual custody, as distinguished from

legal custody which (in the absence of special

order) carries with it a bundle of powers,

including the power to control the child's

education, choice of religion and property as well

as the personal power of physical control: see

Hewer v Bryant (1970) 1 QB 357 at 373, and Todd

v Davison (1972) AC 392 at 403-5. In Wedd v Wedd

[1948] SAStRp 8; (1948) SASR 104, Mayo J recognized that care and

control is only one aspect of custody when he

said, at 107: 'Custody essentially concerns

control, and the preservation and care of the

child's person, physically, mentally and morally;

responsibility for a child in regard to his needs,

food, clothing, instruction and the like.'

Of course the amount of care that will be

necessary, and the degree of control that it will

be possible to exert, will depend on the age of

the child. In Australia, as in England, the

courts sometimes make an order giving joint

custody of a child to both parents and placing the

child in the care and control of one of them.

That does not mean that an order for care and

control is different from an order for custody,

but means that the rights and powers appertaining

to custody are divided, so that one parent has

actual custody, while the wider rights and powers

remain exerciseable by the parents jointly.

Clearly the Family Court has jurisdiction to make

an order as to the care and control of the child

Gary in the present circumstances, and it follows

that the Supreme Court lacks jurisdiction to do so."

"'Custody' has a variety of meanings. Like the

chameleon it adapts itself to its surroundings so

that little is to be gained by discussing its

various connotations, except to note that in its

widest meaning it is virtually the equivalent of

'guardianship' which has been described as 'a

bundle of powers' including the power to control

education, the choice of religion and the

administration of the infant's property: see Hewer

v Bryant (1970) 1 QB 357 at 372-3. Section 64(1)

seems to be speaking of proceedings in which the

applicant is seeking an order by which rights,

duties and obligations in relation to

guardianship, custody or access are to be vested

in someone. In most cases it is the applicant who

seeks these rights but there is no reason why an

applicant should not seek an order vesting such

rights in another party, even a stranger to the

marriage. An application for such an order

answers the statutory description to be found in

the opening words of the sub-section."

In sub-s.3(2) of the Act (formerly sub-s.6(1A)), the Act has made it clear that the element of custody required to be present in addition to elements of care and control must be such degree of custody that, if it is actual custody as distinguished from legal custody, it includes a right of control. A person who has legal custody necessarily enjoys such a right and that right may be exercised by delegating the powers of daily care and control to another. As Davies J. stated in Secretary, Department of Social Security v. Van Luc Ho at p 587:

"Likewise, the expression 'custody, care and

control' in the Act points to the person who is 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 is

(or are) looking after him'. This interpretation

is 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'."

23. The expression "taken to have" in sub-s.3(2) indicates that where a state of facts may depend upon a matter of judgment, that judgment should not be exercised unless certain conditions prevail. (See Williams v. Town of Claremont (1976) WAR 125 at p 128.) If a person has legal custody there is no room for a discretionary conclusion of fact as to a right of control. That right is part of legal custody and, therefore, would be an established fact. Sub-section 3(2) of the Act defines custody by the right to have daily care and control and not by the exercise of daily care and control. The latter elements are separately referred to in the definition of dependent child.

24. As long as the child, Loanne, continued to reside in the State of Western Australia, the respondent was recognized by the law of that State as the person who had the legal custody and guardianship of Loanne. (See ss.34, 35 Family Court Act 1975 (WA)). Pursuant to s.34, a person who has custody under the Family Court Act 1975 has the right to have the daily care and control of the child and the right and responsibility to make decisions concerning the daily care and control of the child.

25. The Act is remedial social legislation designed to cover a multitude of circumstances by different provisions and as such its terms must be read with some flexibility. The Act in s.58 (formerly s.83AAJ) recognizes that two persons may satisfy the qualifications of the Act in respect of a dependent child to receive payment of a supporting parent's benefit. That benefit is not payable to a married couple and the Act, therefore, acknowledges that two people may qualify concurrently under the terms of the Act and in doing so must recognize that any exercise of daily care and control of a child by one such person excludes the exercise of that power in like manner by another. Similarly, in s.86 of the Act (formerly s.99A) a family allowance may be apportioned between two persons. Under s.58, the Secretary must determine that the payment of the supporting parent's benefit be made to only one of the two persons who qualify, whereas in s.86 payment of the allowance may be apportioned by the Secretary. Again the Act recognizes that custody, care and control of a child has many facets and that more than one person may satisfy the requirements of the Act.

26. Furthermore, the Act recognizes that a sufficient element of custody, care and control may exist for the purposes of the Act notwithstanding that a person may not be exercising or able to exercise daily care and control with respect to a child. Sub-section 96(5) of the Act provided for a family allowance to be paid in respect of a child who was living outside Australia provided the claimant for the allowance intended to bring the child to live in Australia as soon as reasonably practicable so to do. The provisions formerly contained in s.96 are now contained s.82 which provides for a family allowance to be paid in respect of a child absent from Australia, or living outside Australia, for a period of up to four years. In each case the Act has recognized that a sufficient element of custody, care and control may remain notwithstanding that a child may be overseas for the purpose of education or a course or training and may be in the physical care and control of another on a daily basis throughout the period of absence. Similarly, the Act provides for children who have been unable to accompany their migrating parents to Australia, to be regarded as dependent children of the migrants pending the arrival of the children in Australia. (See Secretary, Department of Social Security v. Van Luc Ho; Van Cong Huynh v. Secretary, Department of Social Security (1988) 79 ALR 61.) As Burchett J. stated in Van Cong Huynh v. Secretary, Department of Social Security at p 71:

"The provision made by s.96(5) requires that

s.95(1) be construed as referring to a person who

has the custody, care and control of a child in a

sense capable of application to a case where the

child is living in a different country, and it is

and remains not reasonably practicable for the

parent to bring the child to Australia for a

period which may persist for a number of years.

Given the significance of the problems of

migration for the Australian community, the chief

examples Parliament is likely to have contemplated

relate to migrants (as is confirmed by Senator

Guilfoyle's speech when the Senate considered

s.96(5), reported in Senate Hansard for 18 October

1978, pp1431-2, and see also House of

Representatives Hansard for 28 September 1978,

pp1524-5). Those examples must involve delegation

by the parent to others willing to act on his

behalf in a foreign country, and must involve that

there is in practical terms a break in any ongoing

capacity to restore the personal performance of

the parent's functions.

The Act should be construed against the background

of the various and complex problems created by

mass migration, often of people with very limited

resources, and often of political refugees and

fugitives from civil war, persecution or invasion.

It cannot be supposed that Parliament used the

general language found is s.96(5) with the

intention that it should apply to a multiplicity

of reasons for the delay of reunion of a family,

but not to one of the most tragic and most common.

It seems to me that if children are left by a

migrant with some person, whether it be (as in

this case) the mother, or some other person who

accepts custody, care and control on behalf of the

child, the fact that it is not possible for the

child to be brought to Australia as at the time

the application for family allowance is made is no

bar in law to the application - on the contrary,

it is one of the facts bringing into operation

s.96(5), because if it were reasonably practicable

to bring the child to Australia at that time, an

applicant who was not doing so might not be able

to show the requisite intention. If this view

involves a different understanding of the words

'custody, care and control' from that reached in

cases where those words were construed in other

contexts (such as divorce law or the law of

limitations of actions), that is an insufficient

reason to deny the words the meaning which the

present context requires. I have therefore found

it unnecessary to discuss the cases which are

analysed in Secretary, Department of Social

Security v. Van Luc Ho (1987) 77 ALR 491."

27. Section 93 of the Act (formerly s.105) requires a family allowance to be applied to the maintenance, training and advancement of the child in respect of whom it is granted. It can be seen that the statute intends to establish a clear link between the payment of the allowance and meeting the everyday needs of a dependent child. The Act imposes a duty upon the recipient of the allowance to so apply the allowance. Such a provision in the Act becomes part of the context of the Act in which the words "custody, care and control" are to be understood. As Burchett J. said in Van Cong Huynh v. Secretary, Department of Social Security at p 71:

"It is true that, if s.95(1) stood alone, it would

be susceptible of a construction similar to that

which the tribunal has given it. Of course, the

tribunal asserted that it should not be construed

by reference to s.96(5). However, it is a

commonplace of statutory construction to take into

account the setting, within the Act, in which a

section appears (a good example is Brayson Motors

Pty Ltd (in liq) v FCT [1985] HCA 20; (1985) 156 CLR 651 at

658-60; [1985] HCA 20; 59 ALR 265 at 268-9, where the context of

a provision was powerful enough to wrest it away

from a clear literal effect), and to permit

another section to cast light upon its meaning.

Section 15 of the Acts Interpretation Act 1901

provides: 'Every Act amending another Act shall

unless the contrary intention appears, be

construed with such other Act and as part

thereof.' When s.96(5) was inserted, although it

is expressed in negative terms, there was plainly

indicated a legislative intention that the

situation which it contemplated should fall within

the qualification expressed by s.95(1).

Otherwise, the width of s.96(5) would say a great

deal, yet signify nothing: cf Grain Elevators

Board (Vic) v Dunmunkle Corporation (1946) 73 CLR

70 at 86, per Dixon J; FCT v Bill Wissler

(Agencies) Pty Ltd (1985) 16 ATR 952 at 956;

Amalgamated Wireless (A/sia) Ltd v Philpott (1961)

[1961] HCA 31; 110 CLR 617 at 624; Hunter Resources Ltd v

Melville [1988] HCA 5; (1988) 77 ALR 8 at 22, per Dawson J.

That it was intended to have a positive effect is

also implicit in sub-s(6), which refers to a

family allowance 'granted or paid to a person by

virtue of sub-s.(5)', emphasis added, and in the

opening words of s.103(3), which again speak of an

allowance payable 'by virtue of sub-s.96(5)'. The

language of those provisions shows an awareness

that s.96(5) has in fact a substantial operation."

28. In respect of the payment of an invalid pension, the relevant context for the words "custody, care and control" as they relate to the meaning of "dependent child" is a little different. Firstly, the reference to a dependent child is for the purpose of measuring the extent of the pension entitlement and not for the qualification for the payment of an independent allowance or benefit as in the case of a family allowance. If a person who is qualified to receive an invalid pension has a dependent child, the amount of pension paid to that person is to contain an additonal component of pension. Such a component is part of the pensioner's entitlement to a necessary level of income and is not an allowance to be held for the benefit of the child in the manner of a family allowance.

29. Clearly, the purpose of referring to a dependent child to establish the appropriate rate of pension to be paid is to see that the person forced to rely upon the pension as his or her source of income is in a position to make some provision for the maintenance of a family. That obligation may have much wider ramifications than the obligation of a person who has the daily care and control of a child to provide for the immediate needs of that child. That is, a person who may have delegated some degree of right to care for and control a child may retain obligations to provide for the child's longer-term welfare and accommodation and less recurrent needs of maintenance.

30. In fact, the respondent's case provides a good example of such circumstances. Whilst the respondent received a supporting parent's benefit which included a similar component of benefit in respect of her dependent child, the respondent was able to make provision from her pension for the maintenance of her children which was in addition to the family allowance paid directly to the families with whom the children were placed and was able to pay air fares for the child Loanne to allow the child to return to the respondent in the Northern Territory for an annual period of holidays.

31. As Burchett J. stated in Van Cong Huynh v. Secretary, Department of Social Security, the process of the construction of the Act should be carried out against the background of various complex problems such as that posed by the migration of people with limited resources. Equally, part of the background against which the provisions of the Act providing for the payment of a subsistence income by way of pension is to be construed will be conditions of substantial disadvantage such as those experienced by the respondent. In the same way that the Act may be seen to understand the position of migrants forced to surrender some part of the exercise of their parental rights to the daily care and control of their children, so the Act acknowledges the particular problems experienced by persons such as the respondent by reason of illness, deprivation and isolation. It will also comprehend that people such as the respondent may be forced to make decisions in respect of their children in an endeavour to offset, as far as possible, the disadvantages of life they experience. In such circumstances, a mother such as the respondent may feel compelled to delegate a substantial part of her custodial rights. In some cases it may involve a formal fostering arrangement and in other cases, such as the case before the Tribunal, informal and loose arrangements may be in place. It will be a question of fact in each case as to what elements of custody, care and control remain sufficient to satisfy the requirements of the Act.

32. The reasons of the Deputy President who comprised the Tribunal, show that the Tribunal properly assessed the requirements of the Act. It was strongly argued by the applicant's counsel that the Act required the Tribunal to ascertain the factual circumstances of custody, care and control and not the legal entitlement thereto, and that when the Tribunal proceeded to its conclusions it incorrectly regarded the respondent's legal entitlement to custody as the overriding consideration in determining whether the respondent had a dependent child for the purposes of sub-s.28(1B) of the Act (now sub-s.33(3)). For the reasons set out above, that construction of the Act has not been tenable at least since 5 September 1985.

33. The conclusions of the Tribunal were expressed as follows:

"However, in my view the circumstances of that case

were far removed from those of the present

application. I am prepared to assume that the

criterion for determining whether a pension is

payable for Loanne is to look to the factual

circumstances of the case rather than legal

entitlement to custody, care and control. I find,

however, that there was sufficient care and

control both retained and exercised to warrant the

grant of pension in respect of a child whose

factual custody was properly and genuinely

delegated.

It must be remembered, however, that Mary has

never relinquished legal custody of Loanne.

No-one has ever claimed that she has. The

'fostering' arrangement into which she entered was

clearly intended for Loanne's welfare. She wanted

her to live in Perth with good friends whose way

of life she had accepted as her own. She was not

equipped by reason of epileptic fits and

inadequate housing conditions and long distance to

give her the advantages she would obviously enjoy

in Perth living with Mr. and Mrs. Smith

It is apparent that both care and control were

delegated to a limited extent but not to the

extent of abrogating either. There is no

suggestion by reason of the careful arrangements

made that she would not and did not meet her

financial responsibilities to Loanne and insofar

as she was able to do so from such a distance

emotional ties were preserved and nourished. By

way of SPB she contributed substantially to her

regular physical care and by paying additional

sums from time to time she provided clothes,

holidays and educational requirements.

The actual control exercised was limited but I

have stated my views concerning this aspect.

Whenever it was required the right of control that

accompanies legal custody was retained and

exercised as and when required.

If I am in error as to my view of the guidelines

and the Respondent may look to the degree of

significant control actually exercised by a

pensioner or beneficiary in order to determine

whether a pension or benefit may be cancelled, I

am of the opinion that it is the degree of

significant care as well as control that must be

considered. It may be that there is little

evidence of actual control but its relative

absence is not only explained by the facts but

compensated fully by the extent of the care which

was provided.

Accordingly, even assuming that significant

control is a relevant factor, the determining

factor is the extent of care and control. I find

there was sufficient care and control actually

exercised to warrant a finding that Loanne

remained at all relevant times in the custody care

and control of her mother."

34. A close reading of the Deputy President's reasons shows that not only did the Deputy President correctly state the principles to be applied, he also proceeded to duly assess the relevant facts to which those principles were to be applied. It was submitted by the applicant that there was an absence of evidence to support the finding of the Tribunal that the respondent had the custody, care and control of Loanne within the meaning of the Act but as the reasons of the Deputy President display, there was a matrix of such evidence. It was a matter for the Tribunal to allocate particular weight or emphasis to any part of that material and to determine whether the evidence was sufficient to satisfy the Tribunal that the requirements of the Act had been met. Such conclusions remained the province of the Tribunal and cannot be made part of the review by way of appeal in this Court. As Brennan J. stated in Waterford v. Commonwealth of Australia [1987] HCA 25; (1987) 61 ALJR 350 at p 359, there is no error of law simply in making a wrong finding of fact.

35. Whilst the appeal may have duly raised questions of law as to whether the Tribunal had applied a proper construction of the Act, no error of law has been demonstrated in the manner of consideration of those questions by the Tribunal and, therefore, the appeal must be dismissed.