JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LAUFER -v- GEAR [2021] WASCA 2
CORAM: QUINLAN CJ
MURPHY JA
VAUGHAN JA
HEARD: 10 DECEMBER 2020
DELIVERED : 12 JANUARY 2021
FILE NO/S: CACV 135 of 2019
BETWEEN: LAUFER
Appellant
AND
GEAR
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram: O'BRIEN J
Citation: GEAR and LAUFER [2019] FCWA 219
File Number : PTW 5461 of 2016
Catchwords:
Family law - Financial proceedings arising from de facto relationship - Where making of orders under pt 5A of the Family Court Act 1997 (WA) is subject to jurisdictional requirement in s 205X(a) of the Family Court Act - Meaning of 'resident in Western Australia on the day on which the application was made' in s 205X(a) of the Family Court Act - Proper construction of s 205X(a) of the Family Court Act
Family law - Where primary judge found de facto wife was resident in Western Australia on the relevant day for purposes of s 205X(a) of the Family Court Act - Whether primary judge erred in concluding on the facts as found that de facto wife was resident in Western Australia on the relevant day
Legislation:
Family Court Act 1997 (WA), s 205X, s 205X(a), s 205X(b), s 205Z, pt 5A, pt 5A div 2
Family Court Amendment Act 2002 (WA)
Family Law Act 1975 (Cth), pt VIIIAB
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)
Result:
Appeal dismissed
Cross-appeal dismissed
Category: A
Representation:
Counsel:
| Appellant | : | M J D Nicholls QC |
| Respondent | : | B W Ashdown |
Solicitors:
| Appellant | : | Dwyer Durack |
| Respondent | : | Lewis Blyth & Hooper (Applecross) |
Case(s) referred to in decision(s):
Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1
Caldwell v Caldwell [1946] SASR 185
Gear and Laufer [2019] FCWA 219
Gregory v The Deputy Federal Commissioner of Taxation (Western Australia) [1937] HCA 57; (1937) 57 CLR 774
Greig v Fire & All Risks Insurance Co Ltd [1989] 2 Qd R 563
Hafza v Director‑General of Social Security (1985) 6 FCR 444
Henry v Boehm [1973] HCA 32; (1973) 128 CLR 482
In re J (A Minor) (Abduction - Custody Rights) [1990] 2 AC 562
Inland Revenue Commissioners v Lysaght [1928] AC 234
IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1
Kempe v Webber [2003] ACTSC 7; (2003) 191 FLR 1
Khoury v Government Insurance Office (NSW) [1984] HCA 55; (1984) 165 CLR 622
L and C [2005] FCWA 23
LK v Director‑General, Department of Community Services [2009] HCA 9; (2009) 237 CLR 582
Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Norman v Norman (No 3) (1969) 16 FLR 231
NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner…
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- AGLC
- Laufer v Gear [2021] WASCA 2
- Case
- [2021] WASCA 2
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were twofold. Firstly, the court had to determine the proper construction of the phrase'resident in Western Australia on the day on which the application was made' in section 205X(a) of the Family Court Act. This required an analysis of the statute and relevant case law to ascertain the true meaning of the term 'resident'. Secondly, the court had to consider whether the primary judge's application of the facts as found to the properly construed meaning of section 205X(a) was correct. This involved examining the primary judge's findings and determining whether they were consistent with the statutory requirements.
In addressing these issues, the Full Court of the Federal Court of Australia found that the primary judge had correctly interpreted the statutory provision. The court held that there is only one true construction of a written law, and the task of the appellate court is to determine that construction for itself. The court rejected the de facto husband's criticisms of the primary judge's reasoning and held that the construction of section 205X(a) was properly applied to the facts as found. The court further noted that the de facto wife's cross-appeal did not squarely challenge the critical finding of ultimate fact that the de facto husband was not resident in Western Australia on the relevant date, and thus the appeal was dismissed.
The Full Court of the Federal Court of Australia dismissed the appeal and cross-appeal, affirming the primary judge's findings and interpretation of section 205X(a) of the Family Court Act. The court held that the de facto wife was indeed a resident in Western Australia on the day the application was made, and therefore the Family Court had jurisdiction to make orders under Part 5A of the Act. The de facto husband's appeal was dismissed, and the de facto wife's cross-appeal was also dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In relation to the question of construction, the de facto husband, in his submissions, advanced and elaborated upon various criticisms of aspects of his Honour's reasoning. However, it is not necessary for present purposes to examine the detail of his Honour's reasons in the context of these particular criticisms. That is because there is only one true construction, and the task of this court in an appeal concerning the construction of a written law is to determine for itself the proper construction of the written law.[33] [33] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [154]. On the question of the application of the facts as found to the meaning of s 205X(a) of the Act properly construed, the central complaint of the de facto husband was that the judge erred in the findings set out and italicised in [15] above. The de facto husband's essential criticism was that, on the primary facts as found, it was not open to the judge to infer that the de facto wife had not effectively abandoned Western Australia as her home and that her presence in Western Australia on 6 September 2016 could not be characterised as a mere sojourn or transient presence.[34][34] Appeal ts 32. The de facto husband (and the de facto wife) referred to numerous cases on the question of construction, all of which the court has read. The de facto wife filed a cross‑appeal in the following terms:Having correctly found that [the de facto wife] was a 'resident of' Western Australia (including concurrently with [Country A]) … [the judge] erred in law in the proper construction of s 205X(a) … in finding that:(a)a person cannot be 'resident in' two places concurrently (Reasons [50], [51], [53] and [135]); and(b)physical presence within Western Australia on the relevant date was required (Reasons [53], [77], [135] - [136]). The impetus for the 'cross‑appeal' appeared to be a concern to uphold the judge's finding that a party was resident in Western Australia for the purposes of s 205X(a) of the Act by contending that, even if the appeal were successful, the judge erred in finding that the de facto husband was not resident in Western Australia within the meaning of s 205X(a) of the Act. If that were the concern, why a cross‑appeal was filed rather than a notice of contention, is not clear. Moreover, the ground does not squarely challenge the critical finding of ultimate fact that the de facto husband 'was not resident in Western Australia on the relevant date'.[35] Further, the ground is confined to alleged error of law, yet the de facto wife's submissions travel beyond the ground insofar as they contend, in effect, that on the findings and evidence, the judge should have found as a fact that the de facto husband was 'resident in Western Australia' within the meaning of s 205X(a) of the Act at the time the application was filed.[36] That is a mixed question of law and fact.[37][35] Primary decision [136].[36] See respondent's submissions on cross‑appeal, pars 17 - 34; WB 50 - 55.[37] NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509, 511 ‑ 512.