Re Houchar and Director-general of Social Security [308] - (1984) 5 ALN No 308

(1984) 1 AAR 163

---

(Decision by: Deputy President I R Thompson)

Re Houchar and Director-general of Social Security [308] - (1984) 5 ALN No 308

Tribunal:

Member: Deputy President I R Thompson

Legislative References:
Social Security Act 1947 (Cth) - section 95; section 96; section 103; section 104
Income Tax Assessment Act 1973 - The Act
Income Tax Assessment Act 1936 - section 6

Suggested reading:

Decision date: 17 February 1984

---

Decision by:
Deputy President I R Thompson

No V83/169

The applicant, H, sought review of a decision that she was not eligible for family allowance (formerly called "child endowment") in respect of her children during the period that she and they were absent from Australia.

H had migrated to Australia in 1972, joining her husband who had migrated in 1969. By 1977, each of them had taken out Australian citizenship and H was receiving child endowment (now called "family allowance") for seven of her eight children. In March 1977, H travelled to the Lebanon with those children and in October 1977 her husband joined her there. In November 1977, the Department of Social Security learned that H and her children had left Australia and cancelled the child endowment.

In March 1982, H, her husband and eight of their children (two of whom had been born during the family's stay in the Lebanon) returned to Australia and H was granted family allowance in respect of those eight children from that time. However, a delegate of the Director-General of Social Security refused to grant her child endowment or family allowance for any of the period of her absence from Australia.

Section 95 of the Social Security Act 1947 (Cth) provides that a person who has the custody care and control of a child is qualified to receive family allowance for that child. Sections 96, 103 and 104 of the Act provided, so far as was relevant, as follows:

96(1) Subject to section 104, a family allowance shall not be granted unless--

(a)

the claimant (not being an institution)--

(i)

is in Australia; and

(ii)

if 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

(b)

the child in respect of whom the family allowance is claimed--

(i)

is living in Australia, whether or not he is temporarily absent from Australia; and

(ii)

if not born in Australia, has, during the period 12 months immediately preceding the date in which the claim was lodged, been resident in Australia.

(2) Sub-paragraphs (1)(a)(ii) and (b)(ii) shall not apply where--

(a)

the Director-General is satisfied that the claimant and the child are likely to remain permanently in Australia;

...

(4) A child born out of Australia shall be deemed, for the purposes of sub-paragraph (1)(b)(ii), to have been born in Australia if, at the date of his birth, the usual place of residence of his mother was in Australia and her absence from Australia was temporary only.

...

103(1) Subject to sections 6B and 104, a family allowance payable to a person or institution to whom family allowance was granted in respect of a child ceases to be payable if--

...

(d)

the person to whom the family allowance was granted ceases to have his usual place of residence in Australia, unless his absence from Australia is temporary only;

(e)

the child ceases to be in Australia, unless his absence from Australia is temporary only;

...

104(1) Where--

...

(e)

a person whose usual place of residence is in Australia is temporarily absent from Australia,

and that person has the custody, care and control of one or more children, this Part shall have effect as if that person and each of those children were in Australia.

(2) A family allowance shall not be granted or paid by virtue of sub-s (1) unless the person to whom the family allowance is granted or paid or, if that person is a woman, that woman or her husband--

(a)

is a resident of Australia as defined by the Income Tax Assessment Act 1936-1973;

...

Section 6 of the Income Tax Assessment Act 1936 defined "resident of Australia" as including a person "whose domicile is in Australia, unless the Commissioner is satisfied that his permanent place of abode is outside Australia".

Held : (i) H's entitlement to child endowment or family allowance in respect of the children she took to the Lebanon depended on s 103(1)(d) and (e). Had she ceased to have her "usual place of residence" in Australia; and was her and her children's absence from Australia "temporary only"?

(ii)

H's entitlement to child endowment or family allowance in respect of the two children born in the Lebanon depended on s 104(1)(e) and (2). Was her "usual place of residence" in Australia; was she "temporarily absent from Australia"; and was she "a resident of Australia" within the Income Tax Assessment Act 1936?

(iii)

The term "residence" in the expression "usual place of residence" should be interpreted in its accepted legal sense;

(iv)

H's "usual place of residence" had not remained in Australia during the period of her absence, although she was probably a "resident of Australia" within the Income Tax Assessment Act 1936.

(v)

A person's "temporary" absence was one intended by the person not to last indefinitely and not to last for any great length of time.

(vi)

The question whether a person's absence from Australia was "temporary only" has to be ascertained by reference to the person's intentions from time to time ascertained objectively from all the evidence available.

(vii)

H's absence from Australia had not been "temporary only"; and

(viii)

H was not, therefore, qualified for child endowment or family allowance during the period of her absence.