Laufer v Gear
[2021] WASCA 2
•12 JANUARY 2021
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 of Taxation [1956] HCA 80; (1956) 94 CLR 509
Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 3) (1981) 59 FLR 257
Re Taylor; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194
Robertson v Federal Commissioner of Taxation [1937] HCA 32; (1937) 57 CLR 147
Sharp Corporation of Australia Pty Ltd v Collector of Customs [1995] FCA 707; (1995) 59 FCR 6
Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461
The Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe [1922] HCA 55; (1922) 31 CLR 290
Turner v Trevorrow (1994) 49 FCR 566
Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1
Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439
Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547
JUDGMENT OF THE COURT:
Introduction
This is an appeal by the appellant against a decision of O'Brien J who held that the respondent, the appellant's former de facto partner, was 'resident in' Western Australia for the purposes of s 205X of the Family Court Act 1997 (WA) (the Act) on the date she filed an initiating application in the Family Court of Western Australia seeking orders for alteration of property interests.
O'Brien J published written reasons for his decision on 18 October 2019 in Gear and Laufer[1] (primary decision). On the same day, his Honour made procedural orders progressing the matter toward a final hearing. The procedural orders in substance gave effect to the determination of a preliminary issue as to the application of s 205X of the Act. For convenience only, the appellant will be referred to in these reasons as the 'de facto husband' and the respondent will be referred to as the 'de facto wife'.
[1] Gear and Laufer [2019] FCWA 219. (The parties' names and identifying details were anonymised in the published version of the primary decision).
On 6 September 2016, the de facto wife commenced the proceedings by filing an initiating application seeking orders for alteration of property interests as between parties to a de facto relationship pursuant to pt 5A div 2 of the Act.[2]
[2] Primary decision [2].
The primary decision concerned a jurisdictional question of whether the court could make the orders sought by the de facto wife in light of s 205X of the Act which provides:
205X.People to whom this Part applies - connection with WA
Despite section 36(5),[3] 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. (emphasis added)
[3] Section 36 is within pt 3 div 1 of the Act headed 'Jurisdiction of the Family Court'. Section 36(5) provides:
Subject to this section, the Court has non‑federal jurisdiction to make an order under this Act whether or not the facts or circumstances, or any of them, the existence or occurrence of which is necessary for the making of the order took place or arose before the coming into operation of this Act or outside the State.
An issue in relation to s 205X(a) of the Act arose as the parties had each spent a significant proportion of their time in another country (Country A) during and since the breakdown of their de facto relationship.[4]
[4] Primary decision [7].
It was common ground between the parties that (1) the connection with Western Australia required by s 205X(b) of the Act was established and (2) the legislative prerequisites in s 205Z of the Act for the making of any relevant order were established.[5]
[5] Primary decision [5].
Therefore, the only dispute between the parties was whether the requirement of s 205X(a) of the Act was met.[6] The de facto husband contended that the court did 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 de facto wife filed the application.[7]
[6] Primary decision [6]. Section 205Z(1) provides:
[7] Primary decision [6].
Part 5A of the Act (in which s 205X(a) is located) operates independently of pt VIIIAB of the Family Law Act 1975 (Cth), concerning financial matters relating to de facto relationships, which was introduced by the Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Cth). Part VIIIAB, which operates on a system of referral by the States, took effect from 1 March 2009. There has been no referral by Western Australia for the purposes of pt VIIIAB of the Family Law Act.
Part 5A of the Act pre‑dated the Commonwealth measures. Part 5A of the Act was introduced by the Family Court Amendment Act 2002 (WA), which took effect from 1 December 2002.
The primary decision
The judge, having examined a number of authorities on the question of construction of the word 'resident', said:[8]
In 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.
[8] Primary decision [77].
The judge made the following findings of fact relevant to the question of whether one of the parties was 'resident in' Western Australia on the day the application was made.
The de facto wife
The de facto wife commenced the primary proceedings on 6 September 2016.[9]
[9] Primary decision [2].
The judge found that the de facto wife was 'resident in' Western Australia, within the meaning of s 205X(a) of the Act, when she commenced the proceedings on 6 September 2016. In this regard, the judge found the following facts:
1.The parties met in late 2002 and commenced living together in a de facto relationship shortly thereafter. Their relationship ended in mid to late 2014.[10] The parties were resident together in Western Australia for over one‑third of the duration of their de facto relationship.[11]
[10] Primary decision [1], [80].
[11] Primary decision [81].
2.During the relationship the parties purchased an apartment in Western Australia (the apartment) as joint tenants. In 2013, the parties moved out of the apartment and rented it through an agent. The apartment remained in joint ownership of the parties when the proceedings were commenced. It was not sold until October 2016.[12]
[12] Primary decision [84].
3.From 2005, the parties began spending significant time outside Australia, primarily in Country A.[13] From 2005 until 2010, the de facto wife spent approximately 60% of her time each year in Western Australia, and approximately 40% of her time each year in Country A.[14] Thereafter, the percentage of the time spent by the de facto wife in Western Australia was as follows:[15]
[13] Primary decision [83], [89].
[14] Primary decision [89].
[15] Primary decision [90] - [95].
(a)in 2011, 48% (52% in Country A);
(b)in 2012, 23% (77% in Country A);
(c)in 2013, 8% (92% in Country A);
(d)in 2014, 18% (82% in Country A);
(e)in 2015, 28% (72% in Country A); and
(f)in 2016, 30% (70% in Country A).
4.At the time the parties separated in 2014, they were living together in a rented property in Country A.[16] The de facto wife continued to occupy the rented property in Country A until January 2016. At that point, the de facto wife obtained alternative rental accommodation in her own name, again in Country A.[17]
[16] Primary decision [87].
[17] Primary decision [87].
5.In September 2014, the de facto wife commenced a new relationship with a resident of Western Australia, who visited Country A.[18]
[18] Primary decision [85].
6.The de facto wife was in Perth for the following periods in 2015/2016:[19]
[19] Primary decision [118].
(a)12 February 2015 - 9 March 2015 (25 days);
(b)21 May 2015 - 17 June 2015 (27 days);
(c)26 September 2015 - 21 October 2015 (25 days);
(d)5 December 2015 - 25 December 2015 (20 days);
(e)13 February 2016 - 11 March 2016 (27 days);
(f)3 June 2016 - 10 July 2016 (37 days);
(g)24 August 2016 - 14 or 15 September 2016 (21 or 22 days);[20] and
(h)17 November 2016 - 12 December 2016 (25 days).
7.Until her arrival in Western Australia on 3 June 2016, the de facto wife 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.[21]
8.On each occasion of travel in relation to Country A, when completing incoming and outgoing passenger cards, the de facto wife 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. However, 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.[22]
9.The de facto wife commenced certain charitable work in October 2012 in Country A, and her regular presence in Country A was driven, in part, by financial reasons but also by her commitment to the charity.[23]
10.Since September 2014, the charity has been registered as an Australian business, albeit unincorporated, with a postal address and a business address in Western Australia. The de facto wife planned to spend 'a lot more time in Australia to fund raise' for the charity, and to engage appropriate staff in her absence.[24]
11.The de facto wife has health issues that she continues to be treated for by specialist medical practitioners in Perth, and maintains Australian health insurance.[25]
[20] The de facto wife's initiating application was filed during this period, on 6 September 2016.
[21] Primary decision [120].
[22] Primary decision [119].
[23] Primary decision [115] - [116].
[24] Primary decision [117].
[25] Primary decision [121].
The judge also found that, as with the de facto husband, the de facto wife:[26]
1.is an Australian citizen and holds an Australian passport;
2.does not hold permanent resident status in Country A and has no secure entitlement to reside in Country A for any period greater than 12 months; and
3.is an Australian resident for tax purposes and has retained Australia as her place of domicile in that regard.
[26] Primary decision [96], [101], [103].
The judge concluded:[27]
Given all those matters, and the matters relating to the [de facto wife's] immigration and taxation status earlier referred to, it cannot in my view be said as contended by the [de facto husband] that the [de facto wife] 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'. (emphasis added)
[27] Primary decision [123].
The judge also noted, 'for the sake of completeness', that when the proceedings were commenced, the de facto wife was concurrently a resident of Western Australia and a resident of Country A.[28]
The de facto husband
[28] Primary decision [125].
The judge's finding that the de facto wife was resident in Western Australia on the relevant day determined the matter in issue between the parties.[29] However, his Honour also considered the position of the de facto husband and concluded that the de facto husband was not resident in Western Australia on the relevant date.[30]
Conclusion
[29] Primary decision [126].
[30] Primary decision [136].
The judge made no formal orders concerning the finding that one of the parties (the de facto wife) was 'resident in Western Australia' for the purposes of s 205X(a) of the Act. Rather, his Honour made procedural orders for the programming of a hearing of the substantive issues.[31]
[31] BB 1 - 5.
The appeal and the cross‑appeal
The appeal
There are four grounds of appeal which, in substance, involve the following contentions:
1.The judge erred in law in finding that the de facto wife was 'resident in Western Australia' (within the meaning of s 205X(a) of the Act) at the time of the commencement of the primary proceedings, in that:
(a)the judge erred (1) in treating s 205X(a) of the Act as remedial legislation, (2) in failing to apply the ordinary and usual meaning of the phrase 'resident in' - which connotes both a physical presence in a place and the intention to treat that place as home, albeit not necessarily permanently,[32] and (3) by holding that a person is 'resident in Western Australia' if he or she '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; and
(b)on the facts as found, the de facto wife necessarily fell outside of the meaning of 'resident in Western Australia' for the purposes of s 205X(a) of the Act as at 6 September 2016.
2.The judge erred in law in failing to afford the de facto husband procedural fairness by relying on the principles of statutory construction concerning remedial legislation without giving the de facto husband an opportunity to address those principles at the hearing.
[32] Appellant's submissions, par 47; WB 22.
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 cross-appeal
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.
Construction - principles
The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of a provision having regard to their context and legislative purpose.[38] The word 'resident' and its cognate expressions are used in different statutory contexts with different meanings.[39] Thus, for example, it has been held that a residence which would be sufficient for the purpose of service would not be such as to bring a foreign corporation within the operation of a taxing statute.[40]
[38] Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1 [26].
[39] The Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe [1922] HCA 55; (1922) 31 CLR 290, 297, 317 ‑ 318.
[40] Australasian Temperance (297), (318).
Accordingly, the courts have approached the meaning of 'resident' in a statute having regard to the context in which it is used[41] and the purpose or object of the enactment.[42]
[41] Australasian Temperance (297), (299), (304), (335), (337); Henry v Boehm [1973] HCA 32; (1973) 128 CLR 482, 505 (Stephen J). (Although Stephen J dissented in that case, there is no indication in the other judgments that there was any dispute on this point; also the judgment of Stephen J in Henry was preferred by the High Court in Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461). Caldwell v Caldwell [1946] SASR 185, 187; Greig v Fire & All Risks Insurance Co Ltd [1989] 2 Qd R 563, 568.
[42] Australasian Temperance (305); Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 3) (1981) 59 FLR 257, 373 (Morling J).
The word 'resident' and cognate expressions are not terms of art but, rather, 'of very flexible meaning, acquiring whatever precision they have in any given case from their surroundings'.[43] The term 'resident' is 'very flexible in meaning, and easily controllable by the subject matter and the context in which it is found'.[44] The word 'resident' in s 205X(a) of the Act has no defined or special or technical meaning for the purposes of the Act.
[43] Australasian Temperance (304); Henry (505); see also Re Taylor; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194, 197.
[44] Australasian Temperance (337).
In this context, it is evident that s 205X(a) of the Act serves the constitutional purpose of supplying a relevant connection between the subject matter of the legislation and the State of Western Australia. The requirement for a relevant connection between the circumstances on which the legislation operates and the State is to be liberally applied and even a remote and general connection between the subject matter of the legislation and the State is sufficient.[45]
[45] Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1, 14.
The word 'resident' in this context is a verb. The term 'resident in' Western Australia in s 205X(a) of the Act has the meaning of 'resided in' Western Australia. That meaning is congruent with the reference in s 205X(b) of the Act to the parties having 'resided in Western Australia'. Accordingly, s 205X(a) of the Act operates where one (or both) of the parties were residing in Western Australia on the day on which the application was filed.
Further, the word 'resident' here is not descriptive of the person's property, real or personal.[46] In this context, the focus is not on the person's residence in the sense of his or her place of occupation or his or her rights of occupation. Contrary to the submissions by the de facto husband, a person who is itinerant or homeless in this State may be a 'resident in Western Australia' within the meaning of s 205X(a) of the Act.[47]
[46] cf Inland Revenue Commissioners v Lysaght [1928] AC 234, 244.
[47] Appeal ts 21.
Part 5A of the Act is headed 'De facto relationships'. In general terms, it provides for the alteration of property interests and for maintenance with respect to partners in a de facto relationship.[48] Part 5A of the Act effected an important reform of the law and is to be accorded a beneficial construction as remedial legislation.[49] It is to be inferred from its subject matter and terms that it was designed (amongst other things) to overcome the difficulty, complexity and cost of civil proceedings in the Supreme Court in dealing with property disputes between de facto partners.[50]
[48] The term 'de facto relationship' is defined in s 13A of the Interpretation Act 1984 (WA).
[49] L and C [2005] FCWA 23 [24].
[50] L and C [24]; see also s 205V of the Act. That construction is confirmed by the second reading speech of the 'Family Court Amendment Bill 2001' (Hansard, 29 August 2001) where the Attorney General said:
In the absence of specific legislation dealing with de facto property rights, the common law applies. The common law does not make provisions specifically for resolving property and maintenance disputes between de facto partners. The common law remedies which are used are not intended to take account of the different kinds of contributions which may be made by the parties in a de facto relationship. Further, the parties must have a dispute determined by the Supreme Court, rather than by the Family Court. The combination of these factors creates an expensive, time consuming, public and uncertain process for all the parties involved and often results in an unjust outcome.
Access to the remedial provisions of pt 5A of the Act is regulated by s 205X(a) and s 205X(b) of the Act. Section 205X(a) requires a residential connection with the State at the time of the commencement of the proceedings. Section 205X(b) identifies the required historical connections between the de facto relationship and the State. Section 205X(b) is relatively prescriptive. It is concerned with the duration of residence by both parties in the State in the course of the de facto relationship, and the financial contributions, non‑financial contributions to property and contributions to family welfare made by the applicant in the State.
Section 205X(a) of the Act uses the general language of 'resident in', without qualification by reference to 'habitual', 'usual', 'principal' or 'ordinary'. The temporal connection for this criterion is 'the day on which the application was made'. The generality with which s 205X(a) is expressed, in the context of s 205X read as a whole, and in the context of its application as a criterion for access to remedial legislation, tends to indicate that s 205X(a) is intended to be given a broad construction, consistent with the actual language employed and insofar as it is fairly open on the words used.[51] It ought nevertheless not be given a construction which is unnatural or unreasonable.[52]
[51] cf Khoury v Government Insurance Office (NSW) [1984] HCA 55; (1984) 165 CLR 622, 638.
[52] IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, 12.
Also, the words 'resident in', as opposed to 'resident of', as applied to 'the day on which the application was made' point to a liberal rather than narrow construction of 'resident' in this context.[53] A person may be 'resident in' a State for a time or for some occasion without necessarily being a 'resident of' the State. Nevertheless, if it is shown that a person was a resident of Western Australia at the time the application was made, an inference may more readily be drawn (depending on all the circumstances) that the person was 'resident in' Western Australia at the time application was made.[54]
[53] cf Street (481).
[54] That point seemed to be accepted by senior counsel for the de facto husband: appeal ts 13.
'Resident' in this context encompasses residences of differing permanency. It connotes a connection with Western Australia by habitation in the State, even temporarily, at the time the application was made. It imports no particular degree of permanence, although it connotes more than the mere sojourn of a visitor to or transient presence in the State.[55]
[55] cf Street (516 - 517).
The factual circumstances which may amount to a sufficient nexus to constitute residence in a State are many and varied.[56] Whether a person is a 'resident' is a question of fact[57] or (and this really amounts to the same thing for present purposes) a question of fact and degree.[58]
[56] Street (558).
[57] Australasian Temperance (340); Henry (506); Turner v Trevorrow (1994) 49 FCR 566, 574 - 575; Caldwell (190).
[58] Re Taylor (197); Robertson v Federal Commissioner of Taxation [1937] HCA 32; (1937) 57 CLR 147, 169; In re J (A Minor) (Abduction - Custody Rights) [1990] 2 AC 562, 578.
The person's past and present intentions, although not determinative, will often bear upon the significance that is to be afforded to particular circumstances.[59]
[59] cf LK v Director‑General, Department of Community Services [2009] HCA 9; (2009) 237 CLR 582 [23], [28]; Norman v Norman (No 3) (1969) 16 FLR 231, 236.
In Kempe v Webber,[60] the Supreme Court of the Australian Capital Territory was dealing with similarly‑worded legislation. In that case, the parties ceased to reside in the ACT in July 1999. They moved to Melbourne to reside there permanently. They separated on 25 August 2000. The parties continued to reside in Melbourne thereafter, and their children lived and attended school there. The plaintiff was physically present in the ACT on 14 August 2002 when the proceedings were initiated. The plaintiff went to the ACT solely in an attempt to satisfy the requirement that she be a resident of the ACT on the day the application was made. She stayed that week with a friend of hers. After filing the application, she returned to Melbourne to resume the care of her children.
[60] Kempe v Webber [2003] ACTSC 7; (2003) 191 FLR 1.
Higgins CJ found that the plaintiff had not established that she was a resident of the ACT at the time the application was made. His Honour said that in no sense could her friend's place be regarded by the plaintiff as her 'home'.[61] In that regard, his Honour referred to a 'test' stated by Wilcox J in Hafza v Director‑General of Social Security.[62] Higgins CJ said:[63]
Wilcox J [in Hafza] did comment at 449:
'... 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.'
Temporary absence does not terminate residence. [Wilcox J in Hafza] said at 449 ‑ 450:
'... The test is whether the person has retained a continuity of association with the place ... together with an intention to return to that place and an attitude that that place remains "home".' (emphasis added)
[61] Kempe [44].
[62] Hafza v Director‑General of Social Security (1985) 6 FCR 444, 449.
[63] Kempe [28] - [30].
Whilst we would not, with respect, seek to gloss the statute by imposing a singular 'test' to be satisfied in the application of s 205X(a), it may be accepted that the matters referred to by Wilcox J in Hafza, quoted and italicised above, are relevant considerations in considering whether a party is a 'resident' within the meaning of s 205X(a) of the Act on its proper construction having regard to the matters outlined in [26] ‑ [38] above.
Disposition of the appeal
The proper construction of s 205X(a) of the Act, including the connotation of the word 'resident' in the phrase 'resident in Western Australia on the day on which the application was made', has been outlined, sufficiently for present purposes, in the preceding section of these reasons.[64] Insofar as the judge's reference to 'eats, sleeps and lives' in the first sentence of the passage quoted in [10] above might be intended to convey a different shade of meaning, it should not be accepted. Insofar as it is intended to mean no more than the connotation referred to in [36] above, the additional words add nothing. No further parsing of the statutory language is necessary or appropriate. It is also unnecessary, for present purposes, to consider the correctness of the second sentence of the quoted passage in [10] above.[65]
[64] See [26] - [41] and, in particular, [36] above.
[65] That question is raised by the cross‑appeal but, as explained later in these reasons, it is unnecessary to address the cross‑appeal for the purposes of the disposition of the appeal.
Ultimately, the disposition of the appeal turns upon whether, on the judge's findings of fact, the de facto wife necessarily fell outside the description of 'resident in Western Australia' for the purposes of s 205X(a) of the Act, in the sense that no different conclusion was reasonably possible on the facts as found. As the de facto husband submitted, that is a question of law.[66]
[66] Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 [24] ‑ [27], [108]; Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547, 557; Sharp Corporation of Australia Pty Ltd v Collector of Customs [1995] FCA 707; (1995) 59 FCR 6, 16; Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32 [154].
No error of law has been shown. Moreover, on the facts found by the judge, the de facto wife was a resident in Western Australia within the meaning of s 205X(a) of the Act. That is so, in summary, for the following reasons:
1.The de facto wife (and the de facto husband) resided in Western Australia when the de facto relationship commenced in late 2002.
2.The parties were resident together in Western Australia for over one‑third of the duration of the de facto relationship.
3.The parties only moved out of their apartment in Western Australia in 2013.
4.In the period 2014 - 2016, the de facto wife spent between 18% of her time (nearly one‑fifth) and 30% of her time (nearly one‑third) in Western Australia.
5.The de facto wife maintained her joint ownership of the apartment in Western Australia up to October 2016.
6.The de facto wife had no long‑term residency or right to work in Country A, and she returned to Western Australia frequently to live in 2015 ‑ 2016 and stayed for around three ‑ four weeks at a time. On those occasions, up to 3 June 2016, she stayed in Perth with her then Australian boyfriend. Thereafter, she had a room at a friend's house, where she kept her personal belongings and clothing. Her absences from Perth were always accompanied with an intention to return.
7.The de facto wife retained an Australian passport throughout (and beyond) the period to 6 September 2016, and described herself as an Australian resident. She was also an Australian resident for tax purposes.
8.The time spent in Country A, whilst significant, was, in part, driven by the de facto wife's charitable work in Country A. The charity was registered as an Australian business and had a postal and business address in Western Australia.
9.The de facto wife's health needs continued to be met in Perth over the period up to and beyond 6 September 2016, and she maintained Australian health insurance.
10.In 2016, the de facto wife stayed in Western Australia for around 111 days. It was during a stay in Western Australia in that year that she filed the application. There is no indication in the judge's findings that she was in Perth on 6 September 2016 merely for the purpose of lodging the application.
On the basis of these findings of primary fact, the de facto wife had done nothing, as at 6 September 2016, that would be enough to divest herself of the character of a resident of Western Australia which, figuratively speaking, clung to her from association and usage, an association and usage which she had done nothing to dissolve or destroy.[67] The de facto husband's submissions to the contrary cannot be accepted. In these circumstances, the further inference is fairly open, and should be drawn, that when the de facto wife was in Perth during the period in which she filed her application in 2016, she was 'resident in Western Australia' at that time.[68]
[67] Adopting and adapting the words of Dixon J in Gregory v The Deputy Federal Commissioner of Taxation (Western Australia) [1937] HCA 57; (1937) 57 CLR 774, 778.
[68] As noted in [21] above, the thrust of the de facto husband's submissions was that it was not open to infer that the de facto wife had not ceased to be a resident of Western Australia. It was not contended that if that inference were open, the further inference that she was a resident in Western Australia at the time the application was made could not be drawn: appeal ts 32.
It is unnecessary to determine whether there was any denial of natural justice as alleged in [19.2] above. The de facto husband has had full opportunity to present all arguments in this appeal that he may wish to make on the question of remedial legislation. For the reasons given earlier, s 205X(a) is to be construed beneficially in the context of a consideration of pt 5A of the Act. Moreover, the point goes nowhere because, on the proper construction of s 205X(a), on the facts as found, the judge was correct to find that the de facto wife was resident in Western Australia at the relevant time for the purposes of the Act.
Conclusion
The appeal should be dismissed. It is unnecessary to address the merits of the cross‑appeal, although procedurally it should also be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
Associate to the Honourable Justice Murphy12 JANUARY 2021
(1) A court may make an order in relation to a de facto relationship only if satisfied -
(a) there has been a de facto relationship between the partners for at least 2 years; or
(b)there is a child of the de facto relationship who has not yet attained the age of 18 years and failure to make the order would result in serious injustice to the partner caring or responsible for the child; or
(c)the de facto partner who applies for the order made substantial contributions of a kind mentioned in section 205ZG(4)(a), (b) or (c) and failure to make the order would result in serious injustice to the partner.
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