Malinda Kempe v Robert Bruce Webber - [2003] ACTSC 7

MALINDA KEMPE v ROBERT BRUCE WEBBER
[2003] ACTSC 7 (24 February 2003)

CATCHWORDS

ELIGIBILITY FOR APPLICATION – whether applicant “resident in ACT” at time of application – meaning of “resident” – relevance of intention when determining residence – degree of permanence – temporary absence – physical presence in jurisdiction – multiple places of residence – no intention to relocate.

Domestic Relationships Act 1994 (ACT) ss 11(1), 13, 15(1)(b), 15(1)(c)

Adoption of Children Act 1965 (NSW) s 8(1)(a)

Property (Relationships) Act 1984 (NSW) s 15(1)(a)

Family Court Act 1997 (WA); s 205X(a)

De Facto Relationships Act 1996 (SA) s 9(2)(a)

Property Law Act 1958 (Vic) s 280(a)

De Facto Relationships Act 1991 (NT) s 15(a)

Property Law Act 1974 (Qld)

De Facto Relationships Act 1999 (Tas)

Domestic Relationships Bill 1994 (ACT)

Adoption Act 1993 (ACT) s 55

Re an Infant [1981] Qd R 225

Re an Infant [1973] Qd R 116

Re an Infant G (1968) 87 WN (Pt 1)(NSW) 561

In re an Adoption Application [1952] Ch 16

In the adoption of D & N (1997) 1 SR (WA) 7

Regina v Barnet London Borough Council Ex Parte Shah [1983] 2 AC 309

Hafza v Director General of Social Security (1985) 60 ALR 674

Comcare Australia (Defence) v O’Dea (1998) 87 FCR 451

No. SC 502 of 2002

Judge: Higgins CJ
Supreme Court of the ACT
Date: 24 February 2003

IN THE SUPREME COURT OF THE       )
  )          No. SC 502 of 2002
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:MALINDA KEMPE
Plaintiff

AND:ROBERT BRUCE WEBBER
Defendant

ORDER

Judge:  Higgins CJ
Date:  24 February 2003
Place:  Canberra

THE COURT ORDERS THAT:

The application is dismissed.
The parties will be heard as to costs.

This is an application by the plaintiff, dated 14 August 2002, seeking orders pursuant to the Domestic Relationships Act 1994 (ACT) (the Act) with respect both to property and maintenance.

It is not disputed that the parties lived together in a de facto relationship between late 1991 and 25 August 2000.

There are three children of that relationship born, respectively on 26 July 1993, 11 April 1995 and 4 October 1998, in the Australian Capital Territory. The parties were resident in the Australian Capital Territory throughout almost the whole period of their cohabitation.

It is the defendant’s contention that this Court lacks jurisdiction to entertain the plaintiff’s application. It is his assertion that she does not meet the residential requirements of the Act.

There are a number of requirements to be met before this Court may make an order under the Act. The requirement in question is that provided for by s 11(1)(a), that is:

“(1)A court shall not make an order under this part unless it is satisfied –
(a) that either or both of the parties to the domestic relationship were resident in the ACT on the day on which the application for the order was made”

There is a further requirement with a residential element. Subsection 11(1)(b)(i) adds the requirement that –
“(i) both…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Malinda Kempe v Robert Bruce Webber and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] ACTSC 7
Decision Date

CaseChat Overview and Summary

The case Malinda Kempe v Robert Bruce Webber is an application by the plaintiff seeking orders pursuant to the Domestic Relationships Act 1994 (ACT). The plaintiff and defendant were in a de facto relationship between late 1991 and 25 August 2000, during which time they had three children. The defendant argues that the court lacks jurisdiction as the plaintiff does not meet the residential requirements of the Act. The legal issue before the court is whether the plaintiff's temporary presence in the Australian Capital Territory at the time of filing the application was sufficient to meet the residency requirement of the Act.

The court considered the meaning of the term "resident" and whether it required a degree of permanence. The court examined relevant cases and concluded that the term "resident" should be given its ordinary meaning, which includes physical presence and an intention to treat the place as home. The court found that the plaintiff's presence in the ACT was temporary and not intended to be her home. Therefore, the court held that the plaintiff was not a resident in the ACT at the time of filing the application and dismissed the application.

The court acknowledged the potential injustice of the result but was bound to apply the clear meaning of the statute. The court emphasized that it is open to the legislature to amend the Act if they consider it too restrictive or discriminatory. The court ordered that the application be dismissed and that the parties be heard regarding costs.

Orders