(1) An applicant for a first home owner grant must occupy the home to which the application relates as the applicant's principal place of residence for a continuous period of at least 6 months (or the lesser period approved by the Commissioner) commencing within the 12 month period immediately after completion of the eligible transaction or within a longer period approved by the Commissioner.

No lesser period has been approved by the Commissioner.

1. Before turning to the legal submissions which the Commissioner has made and the factual contentions on which he relies in this proceeding relative to the satisfaction or otherwise of Criterion 5, I should add one further piece of evidence. The statement that was provided by Mrs Rutko, the applicant's mother, in which she describes how in November 2007 (though having regard to the dates that I have mentioned, this should perhaps have been a reference to November 2006)- there were major renovations at the parents' home so that it was necessary for the applicant's parents and his siblings to move into the subject unit for approximately 10 weeks until the building had finished. The parents and siblings returned to their principal residence at that time. Mrs Rutko continued:

Adrian continued to live in his unit until after we came back from an overseas trip at the end of April 2007. He then moved back home with us.

1. Ms Holt, who appears on behalf of the Commissioner, submits that in judging whether the criterion has been met, one should be guided by what has been described as the Ferrington principles. These derive from a decision of the New South Wales Administrative Decisions Tribunal Appeal Panel. In that case, Chief Commissioner of State Revenue v Ferrington [2004] NSWADTAP 41; (2004) 57 ATR 170 at 42. These principles have been applied by this Tribunal in similar circumstances over and over again. I can refer to a decision of Senior Member Davis in Boots v Commissioner of State Revenue [2004] VCAT 2549 at 29; one of my own decisions Shafer v Commissioner of State Revenue [2011] VCAT 277 at 24 and a decision of Dr Glover, Damianopoulos v Commissioner of State Revenue on 30 August 2011.
2. The Ferrington principles are as follows:

(1) The words 'principal place of residence' should be given their ordinary meaning in the context in which they appear;

(2) Consideration of whether a person has been residing in or occupying premises as their principal place of residence is to be assessed objectively, in light of the circumstances relating to the actual occupation of the dwelling;

(3) The intention of the person concerned gauged objectively is relevant but not determinative of the issue;

(4) To occupy a home as his or her principal place of residence, a person's occupation must have a degree of permanence to it. A connection to a place of residence of a transient, temporary, contingent or passing nature is not sufficient, nor is occupation for some other purpose;

(5) A short length of the person's residence, while relevant, is not the determinative of the issue;

(6) The reasons for a person's departure from the home must be both reasonable and adequately explained when considered objectively in light of their personal circumstances.

1. By way of general comment on those principles, I observe that the sixth of those principles appears not to be something distinct in itself, but rather something that would shed light on whether the occupancy of the residence would be in terms of the fourth principle, permanent on the one hand as distinct from transient, temporary, contingent or of a passing nature.
2. As the evidence of Mr Rutko indicated, at least toward the end of his period of residence, he was conscious of the need to meet Criterion 5 and so much appeared in his discussion with managing agent, Mr Fein. This led me to consider whether, in a hypothetical situation, where an applicant resided in a house or unit for the sole purpose of meeting Criterion 5 but with the intention at all times of departing as soon as the six month period had clocked up this would meet the requirements of Criterion 5.
3. Ms Holt was inclined to think that the requirement for the criterion would be met if, in every other respect, the occupancy was in a full and complete sense as a home. Later, however, on instructions, she said that the Commissioner would wish to reserve a position on such a hypothetical situation.
4. For his part, Mr Rutko said that whilst he did have the meeting of Criterion 5 in mind at the time that he quit his occupancy of the unit, it was not at the forefront of his mind at the outset and therefore no finding should be made which would equate his situation with the hypothetical grant recipient that I have just referred to.
5. Returning then to the Commissioner's contentions, the Commissioner says that upon consideration of the evidence, leaving to one side any issue of timing, the connection between the applicant and this unit simply failed to meet the Ferrington principles. She drew attention to the fact that upon the evidence, Mr Rutko did not have his address as shown on his driver's licence altered. The address to which the relevant water rates were dispatched remained at his parents' address. The address to which his bank statements were dispatched remained, for most of the period where he claims residence of his unit, his parents' address, though for a period of months, certain banking documents were addressed to him at his principal place of residence.
6. She says further that a comparison of the electricity usage for the premises shows that only minimal electricity was used. This can be scaled and given context by a comparison with the electricity usage for the tenant who vacated following the purchase of the unit by Mr Rutko.
7. All in all, she submits that these principles, applied objectively, will lead to a finding that there was only a formal or a ritual connection between Mr Rutko and the relevant unit and therefore it should not be found that he used it as his principal place of residence for any period. She conceded that whatever occupancy he did have was within the 12 month period immediately after completion of the eligible transaction but said that in any event, the occupancy that he relied upon was not of the necessary six month duration.
8. She said in light of the evidence as to the connection of power to which I made reference earlier, Mr Rutko's occupancy could not have commenced before 30th October and Mr Rutko's physical departure on an overseas holiday on 10th April, his disconnection of the electricity service in his name with effect from 13 April and the signature of a residential tenancy arrangement giving access to the premises for the tenant as from 15th April all meant that however one characterised Mr Rutko's occupancy, it was an occupancy for five and a half months, not the required six months. As previously observed, the Commissioner has granted no abridgement of the six month period.
9. For his part, Mr Rutko said that he did occupy the premises as his principal place of residence for the full period required. He said that he did not do it merely for the purposes of meeting the eligibility criterion but that when the moment to leave arose, he was conscious of that. He submitted that in the circumstances, the Commissioner's determination should be set aside. He relied upon his own evidence, that of managing agent Mr Fein and of his mother, from which I quoted earlier.
10. I have to say I am troubled as to the bona fides of the occupancy which Mr Rutko asserts that he had of these premises; that is, the bona fides as constituting his residence there as his principal place of residence. The matters to which Ms Holt has made reference and which I have recited earlier suggest to me that the occupancy was merely a ritual one with a view to meeting the requirements of Criterion 5.
11. Despite the fact that the Commissioner reserved his position on the subject, I am inclined to think in terms of the Ferrington principles, that someone who takes possession of premises merely for the purpose of meeting Criterion 5 and leaving immediately after the six months have ticked over is someone who has taken up residence for a transient, temporary, contingent or passing purpose and not for the permanent purpose that the Act contemplates. This would stand in contrast to someone who took up residence, intending to stay for a lengthy or indefinite period but was forced to revise that decision based on external circumstances or perhaps based on a bona fide change of mind after the six month period had elapsed.
12. However, I ultimately think that the evidence is relatively finely balanced and ultimately conclude it would be wrong to make a finding that the occupancy of Mr Rutko was of the transient, temporary, contingent or passing nature or no occupancy at all, as the Commissioner would advocate that I do.
13. However, this occupancy, however one characterises it, was simply of too short a duration. I accept the analysis of the evidence put by Ms Holt that the occupancy started no earlier than 30 October - make it 29th October as Mr Rutko asserts - it concluded no later than 15th April. At that point Mr Rutko was physically absent. He was overseas and the legal entitlement to possession had been passed over to Ms Shilken, the tenant. In no circumstances therefore could Mr Rutko be regarded as having been in possession after 15 April. That being the case, his period of occupancy, however one chooses to characterise it, is simply inadequate to meet the six month element of Criterion 5. The Commissioner's determination is affirmed.