GEAR and LAUFER

[2019] FCWA 219

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: GEAR and LAUFER [2019] FCWA 219

CORAM: O'BRIEN J

HEARD: 29 & 31 JULY 2019

DELIVERED : 18 OCTOBER 2019

FILE NO/S: PTW 5461 of 2016

BETWEEN: MS GEAR

Applicant

AND

MR LAUFER

Respondent

Catchwords:

JURISDICTION – Financial proceedings arising from de facto relationship – Interpretation of s205X(a) of the Family Court Act 1997 – Meaning of “resident in Western Australia on the day on which the application was made” – Where the requirement imposed by s 205X(a) will be met when, on the day the proceedings are commenced, one party “eats, sleeps and lives” in Western Australia, with only that degree of permanency necessary to distinguish that presence in this State from a “mere sojourn or transient presence” – Where physical presence in Western Australia on the relevant day will be required, unless an absence from the State on that day is itself properly construed as a mere sojourn elsewhere – Where applicant is found to have been resident in Western Australia on the relevant day.

Legislation:

Corporations Act 2001 (Cth)
Corporations Regulations 2001 (Cth)
Family Court Act 1997 (WA)
Family Court Amendment Act 2002 (WA)
Family Law Act 1975 (Cth)
Income Tax Assessment Act 1936 (Cth)
Interpretation Act 1984 (WA)
Social Services Act 1947 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	Ms Farmer
Respondent	:	Mr Nicholls QC

Solicitors:

Applicant	:	Lewis Blyth & Hooper
Respondent	:	Dwyer Durack

Case(s) referred to in decision(s):

Australian Finance Direct Ltd v Director of Consumer Affairs (Vic) (2007) 234 CLR 96

Black v Black (1991) 15 Fam LR 109

Camden Park Estate Pty Ltd v O’Toole (1969) 72 SR (NSW) 188

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384

Collector of Customs v AGFA-Gevaert Ltd (1996) 186 CLR 389

Curnow v O’Sullivan (No 2) (1976) 1 Fam LR 11,571

Davies v Western Australia (1904) 2 CLR 29

Dunstan v Rickwood (2006) 6 DCLR (NSW) 6

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89

Federal Commissioner of Taxation v Applegate (1979) 27 ALR 114

Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52

Gett v Tabet (2009) 254 ALR 504

Gregory v Deputy Federal Commissioner of Taxation (Western Australia) (1937) 57 CLR 774

Hafza v Director General of Social Security (1985) 6 FCR 444

Henry v Boehm (1973) 128 CLR 482

Hunter v. Southam Inc. [1984] 2 SCR 145

IW v City of Perth (1997) 191 CLR 1

Kempe v Webber (2003) 31 Fam LR 332

L & C [2005] FCWA 23

LK v Director-General, Department of Community Services (2009) 237 CLR 582

Maneka Gandhi v Union of India [1978] AIR (SC) 597

McNamara (McGrath) v Consumer, Trader and Tenancy Tribunal (2005) 221 CLR 646

Minister of Home Affairs v Fisher [1980] AC 319

Saraswati v R (1991) 172 CLR 1

Shah & Akbarali v Barnet London Borough Council [1983] 2 AC 309

Street v Queensland Bar Association (1989) 168 CLR 461

Visy Paper Pty Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 1

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Ms Gear] (“the applicant”) and [Mr Laufer] (“the respondent”) lived together in a de facto relationship from late-2002 or early-2003 until their relationship ended in mid- to late-2014.

2On 6 September 2016, the applicant commenced proceedings seeking orders for alteration of property interests pursuant to the Family Court Act 1997 (WA) (“the Act”).

3The provisions pursuant to which the Court may make orders for alteration of property interests or partner maintenance as between parties to a de facto relationship are set out in Part 5A Division 2 of the Act.

4Section 205X, which is contained in Part 5A Division 2, is in the following terms:

205X.People to whom this Part applies — connection with WA

Despite section 36(5), before making an order under this Division a court must be satisfied —

(a)that one or both of the parties to the application were resident in Western Australia on the day on which the application was made; and

(b)that —

(i)both parties have resided in Western Australia for at least one third of the duration of their de facto relationship; or

(ii)substantial contributions of the kind referred to in section 205ZG(4)(a), (b) or (c) have been made in the State by the applicant.

5It is common ground between the parties that the connection with WA required by s 205X(b) is established. It is also common ground that the legislative prerequisites in s 205Z to the making of any relevant order are established.

6The only dispute between the parties is as to whether the requirement of s 205X(a) is met. The respondent contends that the Court does not have the power to make the orders sought, or any financial orders between the parties, as neither party was resident in Western Australia on the day the application was filed.

7The issue arises as the parties have over recent years, as set out in more detail later in these reasons, each spent a significant proportion of their time in [Country A].

8Most of the relevant facts were not the subject of active dispute. The resolution of the dispute turns largely upon the proper interpretation of the expression “resident in Western Australia” for the purposes of the Act.

9It is convenient, therefore, to turn firstly to the principles to be applied to that interpretation.

The Interpretation Act 1984 (WA) (“the Interpretation Act”)

10The headings of the parts, divisions and subdivisions into which a written law is divided form part of that written law.[1] The reference in the heading of s 205X of the Act to the “connection with WA” of the parties or either of them may accordingly inform a consideration of the meaning of the section as a whole.

[1] Interpretation Act 1984 (WA), s 32(1).

11A construction of a legislative provision that would promote the purpose or object underlying the relevant written law, whether or not that purpose or object is expressly stated, is to be preferred to a construction that would not.[2]

[2] Ibid, s 18.

12Reference may be made to relevant extrinsic material to confirm that the meaning of the relevant provision is the ordinary meaning conveyed by the text, taking into account both context and the underlying purpose or object, or to determine the meaning of the provision when the provision is ambiguous or obscure, or the ordinary meaning of the provision would lead to a result that is manifestly absurd or is unreasonable.[3]

Relevant common law principles

[3] Ibid, s 19.

13As reflected in s 18 of the Interpretation Act, the overall objective of statutory construction is to give effect to the purpose of Parliament as expressed in the text of the relevant provisions.[4] The meaning of particular words and phrases cannot be simply considered in isolation; the interpretation of those words and phrases requires a consideration of the legislative context in which they appear.[5]

[4] VisyPaperPtyLtdvAustralianCompetitionandConsumerCommission(2003) 216 CLR 1; see also AustralianFinanceDirectLtdvDirectorofConsumerAffairs(Vic) (2007) 234 CLR 96, 111–12 [34]; FootsvSouthernCrossMineManagementPtyLtd (2007) 234 CLR 52, 83 [96].

[5] Collector of Customs v AGFA-Gevaert Ltd (1996) 186 CLR 389.

14The common law permits courts to refer to extrinsic materials to ascertain the mischief which the statute was intended to remedy,[6] whether or not an ambiguity or inconsistency is first identified. That in turn informs the purposive approach to interpretation. In many cases the literal meaning of a statutory provision will give effect to the purpose of the legislation, and accordingly constitute the “ordinary meaning” to be applied.[7]

[6] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.

[7] Saraswati v R (1991) 172 CLR 1, 21.

15Legislation properly characterised as beneficial or remedial is to be given a “‘fair, large and liberal’ interpretation rather than one which is ‘literal or technical’”.[8] That said, a liberal and beneficial construction may not be stretched to a construction that is unreasonable or unnatural.[9]

[8] IW v City of Perth (1997) 191 CLR 1, 12.

[9] Ibid.

16The Family Court Amendment Act2002 (WA), which introduced Part 5A into the Act, was remedial legislation “designed to overcome the complexities of equity and the cost of approaching the Supreme Court for relief”,[10] and to “ensure fair and just treatment to de facto couples.”[11]

[10] L & C [2005] FCWA 23, [24].

[11] Explanatory Memorandum, Family Court Amendment Bill 2001 (WA), 12.

17So too, the Family Law Act 1975 (Cth), upon which the substantive provisions of Part 5A are based, has been held to be remedial, such that it “ought to be construed so as not to overthrow existing rights but to give the fullest relief which a fair meaning of its language will allow.”[12]

[12] Curnow v O’Sullivan (No 2) (1976) 1 Fam LR 11,571; see also Black v Black (1991) 15 Fam LR 109 in which a beneficial construction was applied to the relevant law relating to property owned by de facto couples in New South Wales.

18Neither party was able to locate any decision of this Court, or the Supreme Court, as to the interpretation of s 205X. While there were no submissions on point, I have been unable to locate any decision of this Court, or the Supreme Court, as to the interpretation of s 36(3) of the Act, which (while dealing with matters relating to children) also requires that a party be resident in Western Australia.

19Both parties made extensive reference to decisions of other courts which they suggested to be relevant, most particularly as to the interpretation by those courts of the words and phrases “resident”, “a resident of” and “resident in”.

20The task of statutory construction differs from the task of distilling the common law from past decisions. The interpretation of particular words and phrases by a court considering those words and phrases in the context of one statute does not necessarily control the interpretation of the same words and phrases in the context of a different statute.[13] That said, where similar or identical language is used in different statutes, but in pursuit of a common statutory purpose, decisions of other courts of equivalent status may be persuasive, though not binding, and a consistent approach may promote the coherent development of the law.[14] Similarly, albeit in the context of consideration of uniform legislation, it has been observed to be “highly desirable that there be conformity of decision between States where legislative provisions are identical.”[15]

Specific interpretation issues raised in this case

[13] McNamara (McGrath) v Consumer, Trader and Tenancy Tribunal (2005) 221 CLR 646.

[14] Gett v Tabet (2009) 254 ALR 504, 565.

[15] Camden Park Estate Pty Ltd v O’Toole (1969) 72 SR (NSW) 188, 190.

21Against that background, it is appropriate at this point to turn to a number of specific issues raised in the course of the submissions on behalf of the parties.

22Those issues may be summarised as follows:

1.the relevance of authorities interpreting phrases in which the words “resident” or “residence” are qualified;

2.the relevance of other authorities interpreting statutes in which residential requirements are imposed, but where the statute in question has no purpose in common with that of the Act;

3.whether there is a material difference between a requirement that a party be “a resident of” a place and a requirement that a party be “resident in” a place;

4.whether a person can concurrently be “resident in” more than one place; and

5.those matters having been considered, the proper interpretation of s 205X.

The relevance of authorities interpreting phrases in which the words “resident” or “residence” are qualified

23In various statutes, the words “resident” or “residence” are qualified by words such as “ordinarily” or “habitual”.

24Counsel referred in submissions to a number of authorities relevant to the interpretation of phrases including such qualifying words.

25Counsel for the respondent referred in particular to English authority construing the phrase “ordinarily resident” in support of the proposition that, for a person to be ordinarily resident in a place there must be a “settled purpose” for his or her presence there.[16] He referred also to High Court authority settling the meaning of “habitual residence”.[17]

[16] Shah & Akbarali v Barnet London Borough Council [1983] 2 AC 309, [343]-[344].

[17] LK v Director-General, Department of Community Services (2009) 237 CLR 582.

26With due respect to counsel, those authorities are of limited assistance in the proper interpretation of s 205X. That is so, as within that section the phrase “resident in Western Australia on the day on which the application was made” is not otherwise qualified.

27While it has sometimes been said that “ordinary residence” means no more or less than “residence”, I respectfully agree with the view expressed by the learned authors of Dicey, Morris and Collins on The Conflict of Laws that by reference to the authorities there cited, the “better view is that the adjective does add something”.[18]

[18] Lawrence Collins (ed), Dicey, Morris and Collins on The Conflict of Laws (Sweet & Maxwell, 14^th edition, 2006).

28I am reinforced in that view by the observations of the High Court in relation to the meaning of “habitual residence” as follows:

“If the term ‘habitual residence’ is to be given meaning, some criteria must be engaged at some point in the inquiry and they are to be found in the ordinary meaning of the composite expression. The search must be for where a person resides and whether residence at that place can be described as habitual.”[19] (emphasis added).

[19] LK v Director-General, Department of Community Services (2009) 237 CLR 582, 592.

29The passage just cited makes it clear that qualifying words must be given meaning. Put simply, the concept of “habitual residence” is different from the concept of “residence”. The concept of “ordinarily resident” is different from the concept of “resident”.

30Of potential significance for present purposes, however, is the observation that in the authorities cited the relevance of a “settled purpose” arises primarily because of the words used to qualify “residence” or “resident”.

The relevance of other authorities interpreting statutes in which residential requirements are imposed, but where the statute in question has no purpose in common with that of the Act

31As already noted, an element of caution must be applied when considering the relevance to the present matter of authorities in which relevant words or phrases have been interpreted, but in the context of their application in statutes with entirely different purposes or objects than those of the Act.

32As observed by both counsel, the purpose of s 205X is to require the establishment of the “necessary connection with WA” to enliven the power of the Court to alter property interests between the parties, or to impose maintenance obligations on them. The consideration as to the strength of connection necessary is in turn informed by the remedial nature of the legislation. That conclusion is, in my view, consistent with the absence from the section of any words qualifying “resident”.

33Authorities cited by the parties in which relevant words or phrases are interpreted in the context of, for example, taxation legislation must be viewed accordingly. They cannot be regarded as binding as to the proper construction of the relevant term.

34Counsel referred in submissions to Taxation Rulings. Those Rulings do no more than express the interpretation by the Australian Taxation Office of the laws administered by it. They are, with respect, of no binding or even persuasive effect in the proper interpretation of s 205X.

35All that said, carefully considered obiter dicta in judgments of the High Court, unless properly distinguished, will be binding on me. [20] As will appear, that has potential relevance to one of the arguments raised by counsel for the respondent, where the proper approach to the matter in question is not dependent upon the object or purpose of the particular statute.

Whether there is a material difference between a requirement that a party be “a resident of” a place and a requirement that a party be “resident in” a place

[20] Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89.

36Counsel for the respondent drew a distinction between phrases describing a person as being “a resident of” a place, and phrases describing a person as being “resident in” a place. He submitted that the distinction goes beyond the mere grammatical elements that might render the phrases interchangeable.

37The distinction drawn was said to be important, as counsel argued that, while it is possible to be “a resident of” two places concurrently, it is impossible to be “resident in” two places concurrently. He argued that the expression “resident in” connoted an element of physical presence, saying “on a fixed day you cannot be resident in both [places] because you can’t be in two places at once” (transcript, 31 July 2019, p 59).

38Counsel for the applicant argued that the two phrases are effectively interchangeable, pointing by way of example to reported decisions in which they have been used interchangeably. She argued that in any event, authority supports the proposition that a person can be “resident in” two places concurrently.

39In Street v Queensland Bar Association (“Street”),[21] the High Court considered the matter in the context of the interpretation of s 117 of the Australian Constitution which is in the following terms:

“A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.”

[21] (1989) 168 CLR 461.

40Mason CJ regarded the use of the expression “resident in” rather than “resident of”, when considered with other matters, as pointing to “a liberal, rather than a narrow, interpretation of “resident” in s 117”.[22]

[22] Ibid, 485.

41Consistently with that view, Toohey J regarded it as being “of note that the section was directed, not at a person who was a resident of a State, thereby suggesting a particular status, but at a person resident in a State, a more prosaic reference”[23] (emphasis in original). Citing the example of a resident who “might in fact frequently be absent from that State for long periods at a time”, his Honour said: “It is true that such a transient resident may none the less be regarded as resident in South Australia.”[24]

[23] Ibid, 553-554.

[24] Ibid, 558.

42McHugh J observed: “The words are “resident in”, not “resident of”. “Resident” is a word with a number of shades of meaning. In a legal document, its precise meaning will usually depend more upon context than on the dictionary definition. Nevertheless, when used as a noun, it will prima facie refer to a person who resides permanently in a place. When used as an adjective, however, as it is in s 117, some lesser connexion than permanence with a place may make a person “resident in” that place”[25] (citations omitted).

[25] Ibid, 586.

43The views expressed by their Honours are consistent with that earlier expressed by Stephen J in Henry v Boehm (“Henry”),[26] where his Honour said: “the distinction already referred to between “resident of” and “resident in” does, I think, involve, in the case of the latter, less sense of identification as a matter of status with a particular State and a greater concern with the whereabouts of a person’s present abode. Again, the phrases employed in s 117 are unqualified ones, “resident in any State” and “resident in such other State”; there seems to me to be no reason for implying into the section some qualifying word, such as “permanently” so as thereby to limit meaning.”[27]

[26] (1973) 128 CLR 482.

[27] Ibid, 506.

44His Honour went on to observe that reference to a dictionary definition of “resident” would be of little help since “it is clear that a selection may properly be made from within the whole range, from wide to narrow, of the meanings of the adjective “resident”, the choice within that range being dependent upon context.”[28]

[28] Ibid.

45While the court in Street overruled the earlier decision in Henry, it did so on grounds irrelevant for present purposes.

46I am conscious that it is a long settled principle that the provisions of a national constitution must be broadly interpreted and applied, and that a constitutional guarantee calls for a generous interpretation, rather than a close and literal construction.[29] The principles of construction which apply to the Act are not identical to those which apply to interpretation of the Australian Constitution; that said, the “’fair, large and liberal’ interpretation to be given to the Act as a remedial statute is not inconsistent with the generous interpretation to be given to a constitutional guarantee.

[29] Street v Queensland Bar Association (1989) 168 CLR 461, 527; see also Minister of Home Affairs v Fisher [1980] AC 319, 328; Maneka Gandhi v Union of India [1978] AIR (SC) 597; Hunter v. Southam Inc. [1984] 2 SCR 145, 155-156.

47I therefore regard the considered obiter statements outlined above as being binding on me in the proper interpretation of the Act. Even if I am wrong in that conclusion, the statements are self-evidently persuasive.

48I conclude, accordingly, that there is a material difference between the phrases “a resident of” a place, and “resident in” a place. The latter connotes a lesser requirement of connection with the place in question.

Whether a person can concurrently be “resident in” more than one place

49It was common ground between the parties that it is possible for a person to be a resident of more than one place concurrently. That common position is well supported by authority.[30] Accordingly, physical presence in a place is not essential to the status of being a resident of that place.

[30] Gregory v Deputy Federal Commissioner of Taxation (Western Australia) (1937) 57 CLR 774.

50The applicant contended that it is also possible for a person to be resident in more than one place concurrently. The respondent contended that it is not.

51In my view, the respondent’s argument is to be preferred.

52The absence of any qualification to the word “resident” lends strength to the argument. Clearly, it is possible to remain “ordinarily resident” in one place while “temporarily resident” in another.

53Simply being “resident in” one place, connoting as it does (subject to one qualification below) physical presence in that place, in my view precludes being “resident in” (without temporal qualification) another place simultaneously.

54In my view a mere temporary absence for the purpose of a sojourn elsewhere does not mean that a person ceases to be “resident in” a relevant place. Rather, during the temporary absence the person will not, without more, be “resident in” the place to which he or she has travelled. The requirement for the purposes of s 205X that a party be “resident in Western Australia on the day on which the relevant application was made” does not, therefore, necessarily mean that the party must be physically present in Western Australia on that day.

55I do not regard my conclusions as being inconsistent with those of the learned judges in Dunstan v Rickwood (“Dunstan”),[31] or Kempe v Webber(“Kempe”).[32] Both were cases concerning the proper construction of statutes with a purpose common with that of the Act. Both dealt with the interpretation of residential qualifications in the same terms as those used in s 205X.[33] Each, however, turned primarily on the question of whether the relevant party had lost or given up the status of being resident in one place merely by being present temporarily in another.

[31] (2006) 6 DCLR (NSW) 6.

[32] (2003) 31 Fam LR 332.

[33] I do not regard the use of the term "resident within New South Wales" as distinct from "resident in New South Wales" in the Property Relationships Act 1984 (NSW) as material.

56In Dunstan the applicant for relief under the New South Wales legislation was living at the property which he owned in New South Wales when the relevant proceedings were commenced; the argument against him, based on his concurrent ownership of an apartment in Canberra where he would stay for 2 to 3 days a week for work purposes, failed.

57In Kempe, the applicant for relief under the ACT legislation readily acknowledged that she was resident in Victoria, had no intention of returning to the ACT to live, and had only travelled to the ACT at the relevant time for the express purpose of commencing proceedings. She was found not to be “resident in” the ACT at the relevant time.

58The distinction between being “a resident of” a place and being “resident in” that place was not raised or considered in either case.

59I note in any event that the desirability of consistent interpretation across different states of identical legislative provisions is no longer a relevant consideration in relation to the interpretation of s 205X of the Act, given that in all other states and both territories financial proceedings arising from de facto relationships are now brought pursuant to the Family Law Act 1975 (Cth), in which the relevant required connection with a participating jurisdiction is that a party be “ordinarily resident”.[34]

[34] Family Law Act 1975 (Cth), s 90RG.

60The status of being “resident in” a place can change quickly, and for that matter frequently. That in turn calls squarely into question the degree of connection with a place required to ground a finding that a person is “resident in” that place.

61As is clear from the High Court authorities earlier cited, the degree of connection required is somewhat less, or “more prosaic”, than that required to establish the status of being “a resident of” the same place.

The meaning of “resident in Western Australia on the day on which the application was made” for the purposes of s 205X

62The High Court has observed that the word ‘resident’ is used “in many senses”,[35] and that “the factual circumstances which may amount to a sufficient nexus to constitute residence in a State are many and varied.”[36]

“Whatever be its precise abstract connotation, the notion of being ”resident in a State” is a complex one, ordinarily involving, in a concrete case, the interaction of a number of constituent factors.”[37]

[35] Davies v Western Australia (1904) 2 CLR 29, 39.

[36] Street v Queensland Bar Association (1989) 168 CLR 461, 558.

[37] Ibid, 525.

63A consideration of that interaction cannot simply be “subdivided, in the abstract, into a number of discrete, necessary and sufficient elements or factors.”[38] The “relative importance, and even the identity, of the factors which are determinative of whether a particular person is or is not resident in a particular State are likely to vary from case to case”.[39]

[38] Ibid, 526.

[39] Ibid.

64The respondent argued that “’resident’ and its cognate forms in their usual ordinary meaning almost always include [the] following elements:

(a)[the place in question] is one’s home; one’s ‘place of abode’ , one’s ‘dwelling’;

(b)it requires physical presence;

(c)it requires permanence, in that a person has to have the intention of treating the place as ‘home, for the time being, but not necessarily forever’;

(d)and it requires continuity of association, so that if a person leaves their home they must have an intention to return and resume living in their home.” (written outline of the respondent, p 6).

65Both parties referred in their submissions to a decision of the Federal Court in which Wilcox J stated that “as a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever”,[40] and to his Honour’s observations as to the “test” of whether the person has, in his or her absence, retained a continuity of association with the relevant place, together with an intention to return to it, and “an attitude that that place remains ‘home’”.

[40] Hafza v Director General of Social Security (1985) 6 FCR 444, 449.

66His Honour’s observations were made in the context of interpretation of relevant sections of the Social Services Act 1947 (Cth) which provided that child endowment should not be paid unless the claimant was in Australia and, if not born in Australia, had “during the period of 12 months immediately preceding the date on which the claim was lodged, had his usual place of residence in Australia”.[41] An additional requirement was that the child in respect of whom the endowment was claimed must be living in Australia, whether or not temporarily absent, and if not born in Australia had during the same 12 month period “been resident in Australia”.[42] His Honour’s considerations were primarily directed towards the issue of “usual” residence, which his Honour (with respect, correctly) concluded should be accorded a narrower construction than “resident”. That said, and while emphasising that he expressed no view as to the appropriate interpretation of the term outside the immediate context with which he was concerned, his Honour said:

“I think that the words “usual place of residence” in [the relevant section] should be read as prima facie limiting benefits to endowees who, during any particular period, ordinarily eat, sleep and live in a place in Australia.”[43]

[41] Social Services Act 1947 (Cth), s 96.

[42] Ibid.

[43] Hafza v Director General of Social Security (1985) 6 FCR 444, 451.

67His Honour’s use of the word “ordinarily” to qualify the words that follow must be viewed in the context of his interpretation of the composite expression “usual place of residence” (emphasis added).

68In my view, the proposition that a person is “resident in Western Australia” in a particular period if during that period he or she “eats, sleeps and lives” in Western Australia has considerable attraction. It accommodates the concepts of “home” (albeit without temporal qualification) and presence. The related concepts of permanency and continuity of association then fall to be considered by reference to any temporal qualification in the relevant statute, and by application of the purposive approach to statutory interpretation.

69The High Court in Street found it unnecessary to determine the “degree of permanency of residence” which confers “the status of a ‘resident in any State.’“[44] That said, Brennan J made the following observation:

“The proposition that for a [person] to be ‘resident in a State’ there must be a degree of permanency can be accepted only to the extent that it is relevant to distinguish residence from a mere sojourn or transient presence in a State. Otherwise ‘resident’ imports no particular degree of permanence.”[45]

[44] Street v Queensland Bar Association (1989) 168 CLR 461, 505.

[45] Ibid, 516.

70It is against that background, and that of the conclusions earlier drawn as to the distinction between a person being ‘a resident of’ a place and being ‘resident in’ a place, that the proper interpretation of s 205X(a) must be considered in the context of the purpose and objects of the Act.

71As both parties acknowledged, and as is self-evident, s 205X(a) is directed to the question of whether one or both of the parties to proceedings have the required connection with Western Australia. While the point was not specifically emphasised in submissions, it must be borne in mind that s 205X(a) is but one element of a matrix of considerations as to the establishment of that connection. It is, for the reasons that follow, the least onerous element of that matrix.

72The requirements of s 205X(b) each impose a more onerous test. Before making an order under the relevant Division of the Act, the Court must be satisfied either that both parties have resided in Western Australia for at least one-third of the duration of their de facto relationship, or that substantial contributions of the kind referred to in named sections of the legislation have been made in Western Australia by the applicant. Either criterion requires the establishment of a substantial connection with Western Australia, either by reference to time of joint residence within the state, or by the qualification of the level of contributions required to establish that connection.

73The requirements of s 205X(a) stand in contrast to that position. All that is required for the subsection to be satisfied is that one or both of the parties were “resident in Western Australia on the day on which the application was made” (emphasis added). Parliament did not choose to qualify the relevant residence by the use, for example, of the words “ordinarily” or “habitually”, nor to impose a period beyond one day for which the relevant party must be resident.

74Section 205X(a) does not of itself add anything to the consideration of whether a relevant connection with Western Australia is “substantial”.

75The extent to which it must be demonstrated that there was a degree of permanence to that residence to support the required connection with Western Australia must be viewed in that context, bearing in mind the observations of Brennan J earlier cited and which I respectfully adopt.

76The degree of permanence required to satisfy s 205X(a) is less than that required to establish that a person was “a resident of” Western Australia on the relevant day. It is also less than that which would have been required if the relevant concept of residence was qualified in the legislation in a manner referred to above.

77In my view, the requirement imposed by s 205X(a) will be met when, on the day the proceedings are commenced, one party “eats, sleeps and lives” in Western Australia, with only that degree of permanency necessary to distinguish that presence in this State from a “mere sojourn or transient presence”. Physical presence in Western Australia on the relevant day will be required, unless an absence from the State on that day is itself properly construed as a mere sojourn elsewhere.

78The determination of whether either party was resident in Western Australia on the relevant day is a question of fact,[46] which as earlier noted does not otherwise lend itself to the identification of a number of discrete, necessary and sufficient elements or factors commonly applicable in all cases.[47]

[46] Ibid, 544.

[47] Ibid, 526.

79It was common ground between the parties that in the present matter the applicant bears the onus to establish, on the balance of probabilities, the relevant fact.

The evidence

Background, and the movement of the parties between Western Australia and Country A

80The parties met in late-2002 and commenced living together in a de facto relationship shortly thereafter. Their relationship ended in mid- to late-2014.

81As earlier noted, it is common ground that the parties were resident together in Western Australia for over one third of the duration of their de facto relationship.

82In September 2007, the parties purchased an apartment in [Suburb A] (“the apartment”) as joint tenants. Other property purchases were made, with those properties being acquired in the sole name of the respondent or by entities controlled by him. For the purposes of the present dispute, nothing turns on any disagreement between the parties as to the circumstances of those acquisitions.

83The parties began spending significant time outside Australia, primarily in Country A. On the respondent’s evidence, which the applicant did not dispute, in the period 2011 until the end of 2017 they spent more time in Country A than in Australia.

84On the respondent’s evidence, the apartment was informally rented to an acquaintance for approximately four months in early-2012. It is common ground that in 2013 the parties moved out of the apartment, and rented it out through an agent. The apartment was sold in October 2016, after the commencement of the present proceedings.

85In or about September 2014, the applicant commenced a new relationship with a [Mr E]. It is common ground that Mr E is, and was at all relevant times, a resident of Western Australia, although he visited the applicant in Country A.

86The respondent commenced a new relationship with [Ms C] shortly prior to the parties’ separation. It is common ground that Ms C is, and was at all relevant times, a resident of Country A.

87At the time the parties separated, they were living together in a rented property in Country A. They had jointly entered into a rental agreement for a two-year term commencing on 20 October 2013. Initially, they separated under one roof. Within a short period of time, the respondent began splitting his time between the rented property and a property occupied by Ms C. Subsequently, he divided his time between those two properties and his boat. He vacated the rental property entirely in October 2015, and the applicant continue to occupy that property until January 2016. At that point, the applicant obtained alternative rental accommodation in her own name, again in Country A.

88The amount of time spent by each party in Western Australia and in Country A since 2005 was uncontroversial. The summary of the evidence which appears below is largely common ground; while in some instances the parties differed by one percentage point as to their relevant calculations, nothing turns on that and for simplicity those discrepancies are not recited.

89It was common ground that from 2005 until 2010, the applicant spent approximately 60 per cent of her time each year in Western Australia, and approximately 40 per cent of her time each year in Country A. Over the same period, the respondent spent marginally less time than the applicant in Western Australia, and marginally more time in Country A.

90In 2011, for the first time the applicant spent more time in Country A than she did in Western Australia. By her calculation, she spent 52 per cent of her time in Country A and 48 per cent of her time in Western Australia. In the same year, the respondent spent 57 per cent of his time in Western Australia, and 43 per cent of his time in Country A.

91In 2012, the applicant spent approximately 23 per cent of her time in Western Australia, and the balance in Country A. In the same year, the respondent spent 55 per cent of his time in Western Australia, and 45 per cent of his time in Country A.

92In 2013, the applicant spent approximately 8 per cent of her time in Western Australia, and the balance in Country A. The respondent spent 32 per cent of his time in Western Australia, and the balance in Country A.

93In 2014, the applicant spent approximately 18 per cent of her time in Western Australia, and the balance in Country A. The respondent spent approximately 16 per cent of his time in Western Australia, and the balance in Country A.

94In 2015, the applicant spent approximately 28 per cent of her time in Western Australia, and the balance in Country A. The respondent spent approximately 31 per cent of his time in Western Australia, and the balance in Country A.

95In 2016, in circumstances outlined in more detail later in these reasons, the applicant spent approximately 30 per cent of her time in Western Australia and 70 per cent of her time in Country A. The respondent spent approximately 36 per cent of his time in Western Australia, and the balance in Country A. A roughly similar pattern followed in 2017, albeit each party spent less time in Western Australia than they had in 2016.

Citizenship, immigration status and status for taxation purposes

96Both parties are Australian citizens and hold Australian passports. Of course, those facts do not of themselves mean that either party was resident in Western Australia on the relevant date; they may, however, potentially inform a consideration of the degree to which each has maintained a connection with Western Australia.

97Neither party holds permanent resident status in Country A. Both are required to regularly renew their visas in order to remain in that country.

98Prior to the date on which these proceedings were commenced, the applicant had entered Country A at various times only on a tourist Visa, an APEC Visa, or a Volunteer Visa (classified as being a “non-immigrant Visa”). On 20 April 2017, she applied for the first time to enter Country A on a Retirement Visa. On her evidence, that Visa is still classified as a “non-immigrant Visa”, and is valid for one year only. She must apply for its renewal via the Country A embassies in Australia. She opted to apply for the retirement Visa rather than the types of Visas previously used, as it was more convenient to allow multiple entries into Country A (implying, of course, multiple exits from Country A and returns to Western Australia).

99During cross-examination, the respondent acknowledged that he had “quite possibly” entered Country A in the past on a tourist Visa or an APEC Visa. He acknowledged further that he is presently entitled to enter Country A on a retirement Visa, and that such a Visa is issued to applicants aged 50 years and over who wish to stay in Country A for a period not exceeding one year. He acknowledged further that to be eligible for a retirement Visa, an applicant must have the nationality of, or permanent residence in, the country where the application is submitted, and that on applying for his Visa he had represented to the Country A authorities that he had “permanent residence of Australia”.

100The respondent further acknowledged that it is a condition of the retirement Visas held by both parties that they either report to the relevant Country A authorities every 90 days, or exit the country with no less frequency than that.

101It is common ground, accordingly, that neither party has a secure entitlement to reside in Country A for any period greater than 12 months, and that the limited entitlement to reside in Country A they do have is subject to conditions. That said, neither party contended that they had ever encountered any difficulty in renewing their Visas, or obtaining new Visas of a different type, so as to extend their ability to enter and remain temporarily in Country A.

102Again, the particular status of each party’s ability to enter Country A and remain there does not inform the question of whether either was resident in Western Australia at the relevant date, other than to potentially inform a consideration of the degree to which each has maintained a connection with Western Australia.

103Both parties are Australian residents for tax purposes. They have each voluntarily maintained that status, in the sense that neither has sought to dispute it. Even subsequent to their separation, they have maintained a cooperative arrangement in relation to their tax affairs, with the applicant accepting taxable distributions from entities controlled by the respondent. The respondent accepted the proposition that those arrangements were made for his benefit to legitimately reduce his overall tax burden. He accepted also that the precise arrangements were driven by accountants and a personal assistant based in Perth and acting on his instructions.

104The definition relevant to the status of the parties as Australian residents for tax purposes is contained in subsection 6(1) of the Income Tax Assessment Act1936 (Cth), reproduced below:

resident or resident of Australia means:

(a)a person, other than a company, who resides in Australia and includes a person:

(i)whose domicile is in Australia, unless the Commissioner is satisfied that the person’s permanent place of abode is outside Australia;

(ii)who has actually been in Australia, continuously or intermittently, during more than one‑half of the year of income, unless the Commissioner is satisfied that the person’s usual place of abode is outside Australia and that the person does not intend to take up residence in Australia; or

(iii)who is:

(A)a member of the superannuation scheme established by deed under the Superannuation Act 1990; or

(B)an eligible employee for the purposes of the Superannuation Act 1976; or

(C)the spouse, or a child under 16, of a person covered by sub‑subparagraph (A) or (B); and

(b)a company which is incorporated in Australia, or which, not being incorporated in Australia, carries on business in Australia, and has either its central management and control in Australia, or its voting power controlled by shareholders who are residents of Australia.

105It will be seen that while the definition refers to a person “who resides in Australia”, by ss (a)(i) that includes a person whose domicile is in Australia, unless the Commissioner is satisfied that his or her “permanent place of abode” is outside Australia.

106Both parties have retained Australia as their place of domicile. It may be inferred that the Commissioner has not been satisfied that they hold a “permanent place of abode” outside Australia. Again, the use of the qualifier “permanent” is significant; the composite expression has been construed to refer to the taxpayer’s “fixed and habitual place of abode”, connoting “a more enduring relationship with the particular place of abode than that of a person who is ordinarily resident there or who has there his usual place of abode.”[48]

[48] Federal Commissioner of Taxation v Applegate (1979) 27 ALR 114, 128.

107As the applicant points out, the respondent is also the sole member of a self-managed superannuation scheme, meeting the inclusive criteria set out in ss (a)(iii).

108Notwithstanding the use of the expression “resides in Australia” in the relevant definition, as distinguished from the expression “is a resident of Australia”, in my view the reading of ss 6(1) of the Income Tax Assessment Act as a whole, and the authorities which interpret it, render it clearly distinguishable from s 205X of the Act.

109It follows that it is possible for either or both parties to be Australian residents for tax purposes at the relevant time, without being resident in Western Australia at the relevant time. The admitted tax status of the parties is not, accordingly, determinative of the matter presently in dispute. It may, however, inform a consideration of the extent to which each party has retained a connection with Western Australia.

110Similar observations may be made in relation to the respondent’s continuing status as the sole director of a number of Australian companies.

111Section 201A of the Corporations Act2001 (Cth) requires that a sole director of a proprietary company must “ordinarily reside” in Australia. Section 205B(1) requires that ASIC must be notified of the personal details of a director within 28 days after the appointment of the director; s 205B(4) requires the company to promptly notify ASIC of any change to those personal details. By definition and by the operation of s205D the relevant personal details include the director’s “usual residential address”.

112Pursuant to s 346A, within two weeks after the annual review date for a company ASIC must give to the company an extract of its particulars; s 346C requires the company to respond to correct any error in that. Regulation 2N.2.01 of the Corporations Regulations2001 (Cth) prescribes the inclusion of the director’s usual residential address as a required particular.

113It is common ground that the respondent was the sole director of various Australian proprietary companies at the date on which the proceedings were commenced. Accordingly, at the relevant date he had at the least a standing representation to ASIC that he did at that time “ordinarily reside” in Australia. The respondent acknowledged in his evidence that he could not suggest that at any relevant time he resided in any Australian State other than Western Australia.

114Again, in my view it is possible for a person to “ordinarily reside” in Western Australia at the relevant time, without being resident in Western Australia at the relevant time. The respondent’s representations to ASIC are accordingly not determinative of the matter presently in dispute, but may again inform a consideration of the extent to which he has retained a connection with Western Australia in the relevant sense.

The Applicant’s circumstances

115The applicant acknowledges that she has, since separation, “primarily lived in leased accommodation in [Country A]”. She asserts, however, that she does so for practical and financial reasons related to financial support provided by the respondent, and the lower cost of living in Country A by comparison to Western Australia.

116The applicant says further that in October 2012 she “inadvertently” started a [charity] in Country A. Quite how the establishment of the charity was “inadvertent” was not explored. The applicant continues to be involved in the running of the charity, on a volunteer basis, and is clearly dedicated to and focused on that work. She regards herself as having taken on a significant commitment in that regard, which she cannot abandon. It is clear on the evidence that her regular presence in Country A is driven not only by the financial reasons specifically referred to, but by her commitment to the charity. I accept her evidence that she considers herself unable to simply walk away from that responsibility.

117The charity has, since September 2014, been registered as an Australian business, albeit unincorporated, with a postal and business address in Western Australia. The applicant gave evidence, which was unchallenged, that she planned when she was financially able to do so to spend “a lot more time in Australia to fund raise” for the charity, noting also that her Visa requirements do not permit her to engage in paid employment in Country A. Her further evidence as to her plans to train and engage appropriate staff to run the charity in her absence was also unchallenged.

118As already noted, in 2015 the applicant spent approximately 28 per cent of her time in Western Australia. In 2016 she spent approximately 30 per cent of her time in this State. The joint chronology filed by the parties pursuant to my directions showed that she was in Perth for the following periods over those two years:

(a)12 February 2015 to 9 March 2015;

(b)21 May 2015 to 17 June 2015;

(c)26 September 2015 to 21 October 2015;

(d)5 December 2015 to 25 December 2015;

(e)13 February 2016 to 11 March 2016;

(f)3 June 2016 to 10 July 2016;

(g)24 August 2016 to 14 or 15 September 2016; and

(h)17 November 2016 to 12 December 2016.

119On each occasion, when completing incoming and outgoing passenger cards the applicant referred to herself as an Australian resident, and in response to a question as to the State in which she resides nominated Western Australia. She described herself as a returning resident on entry, and a departing resident, intending to return, on departure. That said, it must be acknowledged that the cross-examination of both parties showed that they paid little regard to the accuracy of the details which they completed on passenger cards when travelling between Country A and Australia.

120Until her arrival in Western Australia on 3 June 2016, in the period described above the applicant had nominated the Perth address of her then boyfriend as her address in Perth, and stayed with him on each occasion. Subsequently, when that relationship ended she nominated the Perth address of a friend with whom she stayed. She described herself as “[having] a room” at the friend’s home. Her personal belongings and clothing were kept there.

121The applicant also outlined in her evidence her not insignificant health issues, explaining that she continues to be treated by specialist medical practitioners in Perth, and maintains Australian health insurance.

122While it was put to the applicant in cross-examination that, at the time the proceedings were commenced, there was no property in Western Australia in respect of which she had a “right of occupation”, the apartment of which the parties were joint registered proprietors was not sold until after the commencement of the proceedings.

123Given all those matters, and the matters relating to the applicant’s immigration and taxation status earlier referred to, it cannot in my view be said as contended by the respondent that the applicant has effectively abandoned Western Australia as her home, such that her presence here on the day the proceedings were commenced could be described as a “mere sojourn or transient presence”.

124I conclude that the applicant was resident in Western Australia on the day the proceedings were commenced. The requirement of s 205X(a) is met.

125For the sake of completeness, I note that given all the matters referred to I would readily conclude that the applicant was at the relevant time concurrently a resident of Western Australia and a resident of Country A.

The Respondent’s circumstances

126While my finding that the applicant was resident in Western Australia on the relevant day determines the matter in issue between the parties, I consider it appropriate to consider the evidence and arguments raised as to whether the respondent was also resident in Western Australia on that day.

127The respondent gave evidence that from 2012 he “considered [Country A] to be home.” He has been in a committed relationship with Ms C since separating from the applicant and has spent the bulk of his time living with her in Country A.

128The respondent maintains significant business interests in Western Australia. On his evidence, he “continue[s] to reside in Country A and visit[s] Australia to oversee the business.” He says that when he returns to Australia he stays at what he describes as his “mother’s residence in [Suburb B]”; that description is somewhat disingenuous, given his concession that while his mother lives in the property, he is the registered proprietor of it, albeit he described it as being “effectively in” a trust controlled by him. Under cross-examination he conceded that the relevant home is his property, and that he has a right to occupy it.

129The respondent, or entities controlled by him, own significant other real estate in Western Australia.

130As already noted, in 2015 the respondent spent approximately 31 per cent of his time in Western Australia and in 2016 spent approximately 36 per cent of his time in this State. The joint chronology filed by the parties pursuant to my directions showed that he was in Perth for the following periods over those two years:

(a)15 January 2015 to 24 January 2015;

(b)9 March 2015 to 29 March 2015;

(c)27 April 2015 to 13 May 2015;

(d)15 June 2015 to 27 June 2015;

(e)27 August 2015 to 18 September 2015;

(f)17 October 2015 to 30 October 2015;

(g)22 November 2015 to 12 December 2015;

(h)10 March 2015 to 30 April 2016;

(i)17 May 2016 to 12 June 2016;

(j)4 July 2016 to 13 July 2016;

(k)13 August 2016 to 29 August 2016; and

(l)1 December 2016 to 12 December 2016.

131The respondent was accordingly not present in Western Australia on 6 September 2016, the date on which proceedings were commenced.

132That said, in his response filed on 7 November 2016 he noted in the relevant part of the form the applicant’s relevant status as “Australian citizen”, while referring to himself as “ordinarily resident in Australia” and an Australian citizen. In his amended response filed in October 2017, he referred to himself in the same way. While he purported not to have paid any particular attention to the documents at the time he executed them, he nevertheless had executed the relevant statements attesting to the truth of their contents.

133Commonly with the applicant, on travelling between Perth and Country A the respondent regularly completed incoming and outgoing passenger cards referring to himself as a resident returning to Australia, or an Australian resident departing temporarily, respectively. By way of example, on a departure card executed by him on leaving Perth on 12 June 2016, the respondent described himself as an Australian resident departing temporarily, indicated that his destination was Country A where he intended to stay for 30 days, and described the purpose of his trip as a holiday. Again it might fairly be noted that neither party paid particular attention to the accuracy of the information they provided in making those declarations, particularly by reference to the duration of their intended stays.

134Taking into account all those matters, and most particularly in the respondent’s case the facts outlined earlier in these reasons in relation to his taxation status and his status as a director of various Australian companies, I would have no difficulty in concluding that at the relevant date he was concurrently a resident of Western Australia and a resident of Country A. As earlier explained, however, that is not the relevant test for the purpose of the present dispute.

135In my view, when the respondent is present in Perth he is resident in Western Australia. When he is present in Country A, he is resident there. While he can be “a resident of” two places concurrently, he cannot be “resident in” two places concurrently.

136The respondent was not in Western Australia on the date on which the proceedings were commenced, and his presence at that time in Country A cannot properly be construed as a mere sojourn or transient presence there. I conclude, therefore, that he was not resident in Western Australia on the relevant date.

137I will hear from counsel as to the procedural orders required to progress the substantive proceedings.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM
Associate

18 OCTOBER 2019