Hailey and Carola

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

1. 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

1. 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…