Hailey and Carola
[2019] FamCA 784
•24 October 2019
FAMILY COURT OF AUSTRALIA
| HAILEY & CAROLA | [2019] FamCA 784 |
| FAMILY LAW – JURISDICTION – Whether the wife was “ordinarily resident” in Australia – Where “ordinary resident” is taken at its natural meaning – Where the wife is an Australian citizen – Where the wife has lived in Country A since 1992 – Where the wife returned to Australia to receive medical treatment following a cancer diagnosis – Where the husband commenced property proceedings while the wife was in Australia receiving treatment – Where the wife established no enduring or stable place of accommodation while in Australia – Where the wife had no intention to be resident in Australia and had a return ticket to Country A – Where it is found that the wife was not ordinarily resident in Australia – Application dismissed for want of jurisdiction. |
| Family Law Act 1975 (Cth) s 90SK Health Insurance Act 1973 (Cth) ss 3, 10. |
| Akbari v Brent London Borough Council [1983] 2AC 309 El Oueik v El Oueik (1977) FLC 90-224 Re Kenneth Dudley Taylor v NatWest Australia Bank Ltd [1992] FCA 505 Turner v Trevorrow and Another (1994) 126 ALR 263 |
| APPLICANT: | Mr Hailey |
| RESPONDENT: | Ms Carola |
| FILE NUMBER: | SYC | 168 | of | 2019 |
| DATE DELIVERED: | 24 October 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 10 September 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gray |
| SOLICITOR FOR THE APPLICANT: | Barkus Doolan |
| COUNSEL FOR THE RESPONDENT: | Ms Christie SC |
| SOLICITOR FOR THE RESPONDENT: | Hamish Cumming Family Lawyers |
Orders
The Initiating Application of Mr Hailey filed on 14 January 2019 is dismissed for want of jurisdiction, in that neither party was ordinarily resident in Australia on 14 January 2019.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hailey & Carola has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 168 of 2019
| Mr Hailey |
Applicant
And
| Ms Carola |
Respondent
REASONS FOR JUDGMENT
The proceedings
Ms Carola and Mr Hailey are parties to litigation concerning alteration of property interests pursuant to Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”). It was common ground that the parties lived together in a de facto relationship in Country A but they were in dispute as to its duration. The de facto husband ("the husband") alleged that the relationship commenced in 1999 and that final separation occurred in January 2018. The de facto wife's ("the wife") case was that cohabitation commenced in 2002 and that the parties separated finally in 2011. I mean no disrespect to the parties by use of the words "husband" and "wife" in these reasons and do so only for expediency.
An issue arose as to the jurisdiction of the court to entertain the Initiating Application filed by the husband on 14 January 2019. He sought orders for alteration of property interests pursuant to section 90SM of the Family Law Act.
Section 90SK of the Act provides inter alia as follows:
90SK Geographical requirement
(1) A court may make a declaration under section 90SL, or an order under section 90SM, in relation to a de facto relationship only if the court is satisfied:
(a)that either or both of parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the declaration or order was made (the application time); and
(b)that either:
(i)both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or
(ii)the applicant for the declaration or order made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
in one or more States or Territories that are participating jurisdictions at the application time;
or that the alternative condition in subsection (1A) is met.
(1A) The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.
...
It was common ground that the husband was not "ordinarily resident in Australia" on 14 January 2019, that being the date upon which he filed his Initiating Application. Accordingly, the court has jurisdiction only if the wife was "ordinarily resident in Australia" on 14 January 2019.
Background
The husband was born in 1961 in Australia. The wife was born in Country A in 1965 and came to Australia as a refugee with her mother and siblings in 1981. She acquired Australian citizenship by naturalisation on 26 July 1984.
The wife qualified as a health professional in South Australia and worked for approximately four years. In 1991 she left Australia and worked in Country B and Country A. She has lived in City C since 1992.
The husband is a professional, who started to practice in Australia in 1991. He obtained employment in Country A in 1999 and then moved to City C.
The parties met in City C in 1998, during a visit by the husband to a mutual friend in Country A. At this time the wife had two children, with whom she lived in a property which she owned in City C. The wife's children are Ms W, a daughter whom she unofficially adopted in about 1992, and Ms X, who was born in 1995.
After the husband moved to City C in 1999, he lived in a rented apartment. He moved into the wife's premises in approximately January 2002, after she became pregnant with their first child. After renovations in about 2002, the wife's property transformed into a four-storey structure, with independent accommodation on each level.
At the commencement of cohabitation the wife owned two parcels of real estate in Country A and a house at Suburb E in South Australia. The wife deposed that she inherited the South Australian property from her mother. The husband owned no real property at the commencement of the relationship.
The parties' son, Y, was born in Brisbane in 2002. The wife travelled to Brisbane in April 2002 and remained there until August/September 2002, for the purpose of obtaining medical assistance with the pregnancy and birth.
The parties' daughter, Z, was born in 2004 in City D. The wife spent approximately two and-a-half months in City D prior to the birth of Z, in order to obtain appropriate medical care.
The wife's daughter Ms X attended a private high school in Brisbane in 2010, 2011 and 2012. After she completed high school in 2012, Ms X attended university in Adelaide. She lived at the Suburb E property which the wife had inherited from her mother.
The wife contended that she decided to terminate the relationship with the husband in 2011 and, from that point, the parties occupied separate accommodation on different floors of her property in City C. The husband contended that the parties continued to live together until January 2018, although at times they occupied separate accommodation within the wife's property. In January 2018 the husband moved into a rented apartment in City C.
In January 2018 the wife was diagnosed with cancer. On medical advice, she travelled to Australia for treatment in February 2018. She purchased an open-return ticket, with a "maximum scheduled return for 29 December 2018."
In August 2018 the wife received specialist medical advice to the effect that her treatment would continue beyond December 2018. Accordingly, she cancelled this ticket and, on 14 January 2019, she purchased a flight to Country A. The wife left Australian and travelled to City C on 8 February 2019.
The wife deposed that she stayed with friends and family members in Australia during the twelve month period of her medical treatment. In her affidavit of 28 May 2019 the wife set out her accommodation arrangements as follows:
Month Period Approximate Duration Location Home of Relationship Feb 2018 From 6th 2 days Adelaide Ms X Daughter 2 days Adelaide Ms F Friend All other days in month Adelaide Ms G Sister March 2018 10 days collectively at 4 locations Brisbane Ms J Friend Mr K Niece Ms L Sister Ms M Friend 4 days Adelaide N Hospital - 3 days Adelaide Ms F Friend All other days in month Adelaide Ms G Sister April 2018 8th – 22nd 14 days Adelaide Ms X Daughter 2 days Adelaide Ms G Sister All other days in month Adelaide Ms G Sister May 2018 1st to 16th 7 days Adelaide Ms X Daughter 8 days Adelaide Ms G Sister 16th to 30th 14 days Brisbane Ms J Friend June 2018 10 days Brisbane Mr K Niece 2 days Brisbane Ms K Niece 4 days Brisbane Ms L Sister 3 days Brisbane O Hospital - All other days in month Brisbane Ms M Friend July 2018 2 days Brisbane Ms L Sister 2 days Brisbane Ms K Niece 4 days Maleny Mr & Ms P Friends All other days in month Brisbane Ms M Friend Aug 2018 7 days Brisbane Mr K Niece 2 days Brisbane Ms K Niece 1 day Brisbane Ms L Sister All other days in month Brisbane Ms M Friend Sept 2018 3 days Brisbane Mr K Niece 3 days Brisbane Ms L Sister 3 days Brisbane Ms K Niece All other days in month Brisbane Ms M Friend Oct 2018 4 days Brisbane Mr K Niece 2 days Brisbane Ms L Sister 2 days Brisbane Ms K Niece All other days in month Brisbane Ms M Friend Nov 2018 5 days Brisbane Ms L Sister 2 days Brisbane Ms J Friend 23 days Brisbane Ms M Friend Dec 2018 16 days Brisbane Ms M Friend 3 days Brisbane Mr K Niece 19th to 31st 13 days Adelaide Ms Q Niece Jan 2019 1st to 10th 4 days Adelaide Ms Q Niece 4 days Adelaide Ms F Friend 2 days Adelaide Ms X Daughter 12th to 15th 4 days Brisbane Mr K Niece 24th to 27th 3 days Cairns Ms U Friend All other days in month Brisbane Ms M Friend Feb 2019 1st to 8th 3 days Brisbane Mr K Niece 5 days Brisbane Ms M Friend
The children remained in City C while the wife was in Australia but visited her in the company of the husband on at least one occasion. There was a dispute as to the extent of the husband's involvement in the day-to-day care of the children during this period. This issue does not require determination for present purposes.
The wife deposed that she holds a Medicare card, as she is an Australian citizen. She deposed further that Medicare covered "a portion" of the cost of her cancer treatment. The wife indicated that she brought US$30,000 in cash to Australia and used these funds to meet medical, travel and living expenses.
The evidence and witnesses
The applicant husband relied upon his affidavits affirmed on 3 January 2019 and 27 June 2019. The husband gave brief oral evidence by way of cross-examination.
The respondent wife relied on the following affidavits:
·Ms Carola (the de facto wife) sworn on 7 March 2019, 28 May 2019 and 23 July 2019
·Ms F (friend of the wife) sworn on 29 July 2019
·Ms J (friend of the wife) sworn on 8 August 2019
·Mr R (friend of the wife) sworn on 8 August 2019.
The wife's witnesses were not required for cross-examination. A difficulty arose with cross-examination of the wife, due to the absence of a Cambodian interpreter. By agreement between counsel, this difficulty was overcome by way of the wife providing written answers to questions concerning an incoming passenger card and a Medicare form (Exhibit 1).
The wife completed and signed an incoming passenger card on 6 February 2018, in which she described herself as "resident returning to Australia". The wife answered a question to the effect that she re-enrolled in Medicare in 2018 but stated that she could not recollect whether she ticked certain boxes on the application form.
Consideration
The meaning of the phrase "ordinarily resident" was considered by the House of Lords in Akbari v Brent London Borough Council [1983] 2AC 309. Their Lordships held as follows:
Unless it could be shown that the statutory framework or the legal context in which the words "ordinarily resident" were used required a different meaning to be given to them, it was settled law that they referred to a person's abode in a particular place or country which he had adopted voluntarily and for settled purposes (which could include education), as part of the regular order of his life for the time being, whether of short or long duration, with the exception that, if his presence in a particular place or country was unlawful, for example, in breach of the immigration laws, he could not rely on his unlawful residence as constituting ordinary residence.
Lord Scarman stated as follows (at page 342):
I agree with Lord Denning MR that in their natural and ordinary meaning the words mean "that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration". The significance of the adverb "habitually" is that it recalls two necessary features mentioned by Viscount Sumner in Lysaght's case, namely residence adopted voluntarily and for settled purposes.
Lord Scarman stated further:
Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used require a different meaning, I unhesitatingly subscribe to the view that "ordinarily resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.
There is, of course, one important exception. If a man's residence in a particular place or country is unlawful eg. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence ...
And there must be a degree of settled purpose. The purpose may be one; or there may be several. It may be specific or general. All that the law requires is that there be a settled purpose. That is not to say that the "propositus" intends to stay where he is indefinitely; indeed his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of a particular abode. And there may well be others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.
In Re Kenneth Dudley Taylor v NatWest Australia Bank Ltd [1992] FCA 505 the Full Court of the Federal Court of Australia held as follows:
It is enough to note that the authorities demonstrate that it is possible for a person to be "ordinarily resident" at a particular time in more than one place; see Levine v Commissioner of Inland Revenue [1928] UKHL1 [1928] AC 217 at 222; Commissioner of Inland Revenue v Lysaght 1928 AC 234 at 243-244; Robertson v Federal Commissioner of Taxation [1937] HCA 32; Re Vassis; Ex parte Leung [1986] FCA 21. In the last-mentioned case, Burchett J pointed to the juxtaposition in section 43(1)(b)(i) of the Bankruptcy Act of the phrase "ordinarily resident in Australia" and "personally present ... in Australia". He said that, in such a context, the phrase "ordinarily resident in Australia" refers to a situation where the person's settled and usual place of abode is in Australia. His Honour observed "it is a question of fact and degree at what point a temporary absence might, if sufficiently prolonged, prevent it being proper to continue to regard him as ordinarily resident in Australia.
In my view it is legitimate to take into account, inter alia, the intention of the wife as to her presence in Australia in order to determine whether she was "ordinarily resident" in this country on 14 January 2019. I see nothing in the reasons of the House of Lords in Akbariv Brent London Borough Council which precludes a court from having regard to the state of mind or intention of the relevant person for that purpose. Their Lordships stressed that the words "ordinarily resident" should be given their "usual meaning".
In Turner v Trevorrow and Another (1994) 126 ALR 263 at 271 the Full Court of the Federal Court had regard to the intention of the relevant person in determining whether he was "ordinarily resident" in Australia for the purposes of the Bankruptcy Act 1996. Their Honours said:
The question is one of fact ... In our view of the evidence Mr Turner was not ordinarily resident in Australia on 2 April 1993. He did not have a dwelling in Australia. He had left Australia with his family, with the intention of spending a substantial period of time – as much as five years – overseas. He was not engaged in employment which by its very nature created a link between himself and Australia notwithstanding long physical absence – such as employment by the Australian government or an Australian company. He had, for the time being at least, severed his ties with Australia and made arrangements for the winding down (if not winding up) of the company's business affairs.
(emphasis added)
In El Oueik v El Oueik (1977) FLC 90-224 the court was concerned, inter alia, with a determination whether a party to proceedings for dissolution of marriage was "ordinarily resident in an overseas country" on a relevant date. Similarly, the court had regard inter alia to the intention of the relevant party to the proceedings.
The facts in El Oueik were set out by Toose J as follows:
The petitioner went to the Lebanon in 1972, staying a period of seven to eight months and returning to Australia in January 1973. On the first trip she took two of the children, F and N, with the purpose of putting them in a Lebanese school. On 25 June 1973 the petitioner returned to Lebanon taking with her the eldest and the youngest child, and returned to Australia on 23 March 1975, without the children. She has remained in Australia ever since ...
The petitioner says that it was her intention to remain in Lebanon for only a short period in 1973 but that she was compelled to remain there because insufficient provision was made for her financially by the respondent which would enable her to return with the children. In this respect, I accept the evidence of the petitioner. Her account is consistent with the respondent's claims about his financial position.
(emphasis added)
The Court determined that neither of the parties to the proceedings was "ordinarily resident" in Lebanon on the relevant date. His Honour stated as follows:
Her evidence coupled with the continued residence of the respondent in Australia, and the petitioner's return to Australia, indicates to me that the petitioner was not "ordinarily resident" in Lebanon when the respondent commenced his proceedings for dissolution of marriage in the Muslim court. In this connection it should be noted that in section 4 of the Family Law Act "ordinarily resident", is defined in the following terms: "Ordinarily resident includes habitually resident". In such a context it cannot be said that either party was ordinarily resident or domiciled in Lebanon at the relevant date ...
The wife gave clear and consistent evidence as to her intention and the reasons for her twelve month presence in Australia. In her affidavit of 7 March 2019 she deposed inter alia:
22.In January 2018, at a medical clinic in City D, I was diagnosed with advanced Stage 3 Cancer. Both the Clinic Specialist and a Specialist in Country A recommended that I should go to Australia to receive the best possible specialist treatment.
23.When I travelled to Australia in February 2018 I was travelling on an open return date ticket with a maximum scheduled return for 29 December 2018 as I did not know when my medical treatment would end.
24.In August 2018 I was advised by my oncologist that I needed more time to undertake treatment past December 2018 which also required that I remain close to a major hospital for regular heart scans to monitor heart function due to the effects of the chemotherapy. In August 2018 I contacted my travel agent in Country A to find out whether my ticket could be extended past December 2018. I was advised that it could not be extended and it had to be cancelled.
25.For the year I spent in Australia, I underwent tests, a radical mastectomy, intensive chemotherapy, Herceptin treatment and radio therapy. While in Australia I stayed with family and friends at six places in South Australia and five places in Queensland. [Mr Hailey] brought the children over once to see me.
26.I anticipated that I would be medically cleared by my surgeon and oncologist at appointments with them in early February 2019 to undertake a long haul flight and I booked my travel home. I booked my flight on 14 January to depart Australia on 8 February 2019 and wrote to the children to tell them I would be returning home.
27.I was served with [Mr Hailey's] Application and supporting documents on 19 January 2019.
28.I returned to my home in City C on 8 February 2019 once the Oncologist had given me the all clear to travel at an appointment on 1 February 2019. It was never my intention to stay in Australia other than to receive the medical treatment I required.
29.I note that in [Mr Hailey's] Initiating Application, Part B, he gives my "Residential Address" as S Street, Suburb T, Queensland. The address is in fact the home of a friend with whom I stayed temporarily while I was receiving treatment and recovering. I have relied on the hospitality of family and close friends to house me during my stay in Australia. That has meant I have had to move frequently as these have been temporary stays where I have not wished to impose for too long upon the generosity of people as a visitor in their homes.
In her affidavit of 28 May 2019 the wife deposed inter alia as follows:
6.I did not wish to travel away from my children in Country A for any significant period of time or to leave my home in Country A. The children live with me at my home in City C and I am responsible for their care and have been since [Mr Hailey] and I separated in 2011.
...
8.With the urging of friends and family and knowing the children would be well cared for I was persuaded to travel to Australia for treatment and made arrangements to travel to Australia in February 2018.
9.The sole purpose of the trip to Australia from February 2018 to February 2019 was to receive professional medical care that was at much higher level of care than available in either Country A or Country B, at the urging of my medical specialists.
10.I purchased an open return ticket as I did not know the extent or duration of my treatment in Australia with the latest return date of 29 December 2018.
...
19.It was never my intention to stay longer in Australia other than to receive the medical treatment that I required. I arrived in Australia with no other personal belongings, other than those contained in my suitcase. As set out in my first affidavit, originally I thought I would be able to return to Country A in or around August 2018, 6 months after I arrived here.
20.I experienced problems with the chemotherapy, resulting in neuropathy and an inability to cope with the cold weather in Adelaide and in conjunction with my Doctor made a decision to transfer treatment to the O Hospital in Brisbane. Treatment in Brisbane continued well past the expected return date and into the start of February 2019.
...
24.The Doctor and Oncologist in Adelaide both recommended against travelling back to Country A during the treatment for cancer, as there was a risk of infection due to suppressed immune system, heart failure and/or other complications. The chemotherapy and radiation regimes required frequent appointments over a period of time (e.g. the radiation regime was daily over a 6 week duration) and led to periods of illness and significant health issues (neuropathy/immune system suppression), which also made any long haul flight back to Country A impractical. When I met for the final appointments with my Oncologist and Surgeon in Brisbane, I was given clearance for travel back to Country A.
25.I missed my children, my home, my friends and my charity work in Country A, so on 14th January 2019, I booked my travel home for 8th February 2019, anticipating that I would be medically cleared by my Surgeon and Oncologist at appointments with them on 1 February 2019 to undertake the long haul flight.
The wife established no enduring or stable place of accommodation in Australia between February 2018 and February 2019. She moved between the homes of friends and members of her family on a frequent basis. As noted, in his Initiating Application the husband inserted a "residential address" for the wife as "S Street, Suburb T Queensland". The wife gave uncontradicted evidence that this address was the home of a friend with whom she stayed "temporarily" while she received medical treatment.
In his Outline of Case document, counsel for the husband pointed to eleven factors which he suggested should militate in favour of a finding that the wife was "ordinarily resident in Australia" on 14 January 2019. These matters were as follows:
18.There are a number of factors that point towards a finding that the Respondent was ordinarily a resident in Australia at the relevant time. They are, at the time the application was filed:
(a)the Respondent came to Australia to receive medical treatment over a period of time;
(b)the Respondent was an Australian citizen;
(c)the Respondent had lived exclusively within Australia for over 11 months;
(d)the Respondent had an Australian Tax File Number;
(e)the Respondent earned income in Australia
(f)the Respondent owned real property in Australia;
(g)the Respondent received medical treatment in Australia using a Medicare card;
(h)the Respondent held bank account with Australia financial institutions and had money within that account;
(i)the Respondent paid for maintenance of that property;
(j)the Respondent has assets in Australia, including a bank account with ANZ with approximately; [sic]
(k)had friends and family within Australia.
On behalf of the wife, it was indicated that she took no issue with the factors identified in paragraph 18 of the Outline of Case Document of counsel for the husband. It was submitted that these factors, with the exception of those set out in subparagraphs (a), (c) and (g), "had been the case for the last 20 years."
The wife gave uncontradicted evidence as follows in relation to her taxation affairs in Australia:
17.I note Paragraph 107 wherein the Applicant asserts that prior to my return to Australia in 2018 I declared myself to the ATO as a
non-resident of Australia for taxation purposes. This seems to infer that 2018 and 2019 could be distinguished from that practice. This is simply not so.18.From leaving Australia permanently in 1992 and until approximately 2008, I did not lodge a tax return in Australia as there had been no Australian income. From 2008 until Ms X moved into the property in 2013, I filed a tax return as a non-resident of Australia due to the rental income I was receiving on the property.
19.Since 2008 I have declared myself to the Australian Taxation Office as a non-resident of Australia for taxation purposes.
20.For the 2017/18 financial year I lodged a tax return with the Australian Taxation Office as a foreign resident and I intend for the financial year 2018/19 that I will lodge a further return as a foreign resident.
The wife gave uncontradicted evidence that her assets in Australia consist of the house which she inherited from her mother and a bank account with a balance of approximately $60,000. She deposed that her only Australian income consists of bank interest and that the house is occupied by her daughter Ms X.
As submitted on behalf of the wife, she has had these connections to Australia for a number of years. Throughout this period, however, she has been a resident of Country A. These connections with Australia, taken individually or collectively, could not result in the wife being "ordinarily resident in Australia".
The wife has left Country A to seek medical treatment in another country on two previous occasions. Consistently with her actions in seeking medical treatment outside Country A on this occasion, the wife spent time in Brisbane and City D during her two pregnancies and the births of the parties' children in 2002 and 2004. Consistently with her actions on this occasion, the wife returned to her home in City C as soon as she was able to do so after the births of the two children. In my view, it could not seriously be suggested that these two temporary absences from Country A, for the sole purpose of medical treatment, would have resulted in the wife becoming "ordinarily resident" either in Australia or Country B on these occasions.
I have no reason to doubt the wife's evidence that she left her children in City C reluctantly; that she missed them at all times during her stay in Australia and that she harboured a consistent desire to return to them at the earliest possible opportunity. In my view, the evidence indicated clearly that she implemented her wish to be reunited with her children in Country A as soon as her medical specialists cleared her for long-haul travel.
Tellingly, the wife purchased a ticket to City C on the day when the husband filed his Initiating Application on 14 January 2019. Accordingly, the wife was taking steps to put an end to her time in Australia and return to her home in Country A on the very day upon which the husband contends that she was "ordinarily resident" in this country. As indicated, I accept that the wife terminated her presence in Australia as soon as she was able to do so in accordance with specialist medical advice.
In my view, the wife's incoming passenger card dated 6 February 2018 is of limited assistance to the husband for present purposes. It is true that she stated that her "intended address in Australia" was the home in South Australia. It is true also that she ticked the alternative "resident returning to Australia" and indicated that she intended to reside in this country for the upcoming twelve months. The reality of the wife's situation, however, was that she was facing treatment for a serious disease and did not know for how long this difficult process would necessitate that she remain in Australia.
Similarly, I do not consider that the fact that the wife re-enrolled in Medicare in February 2018 assists the case of the husband. Section 10 of the Health Insurance Act 1973 (Cth) provides that "an eligible person" is entitled to Medicare benefits. The phrase "eligible person" is defined in section 3 as "an Australian resident". Section 3 defines "Australian resident" as "a person who resides in Australia and who is: (a) an Australian citizen ..."
In my view, it is thus the case that the wife's entitlement to Medicare benefits arose from her Australian citizenship and her temporary residence in Australia. I do not consider that this factor assists the husband's contention that the wife was "ordinarily resident in Australia" on 14 January 2019.
For all of these reasons, I conclude that the husband failed to establish that the wife was "ordinarily resident in Australia" on 14 January 2019. Accordingly, I will dismiss the Initiating Application filed on that date for want of jurisdiction.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on
24 October 2019.
Associate:
Date: 24 October 2019
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