Park & Byon

This case concerned an application for leave to appeal a decision of Cohen J in the Family Court of Australia. The parties were the husband and wife, and the dispute involved proceedings for dissolution of marriage. The husband had filed an application for dissolution, asserting that he regarded Australia as his home and intended to live there indefinitely. A key factual issue was that the husband executed his application on 11 January 2000, immediately travelled to South Korea, and was not physically present in Australia on 24 January 2000 when the application was filed on his behalf.

The primary legal issue before the Full Court was whether the trial judge erred in finding that the husband was domiciled in Australia at the time the dissolution application was filed, thereby establishing the Court's jurisdiction under s 39(3) of the *Family Law Act 1975*. This involved determining the correct test for acquiring a domicile of choice in Australia, particularly in light of the *Domicile Act 1982*, and whether the husband's temporary departure from Australia after executing the application invalidated his claimed domicile. The wife had argued that to acquire a domicile of choice, a person must be lawfully present with the intention of remaining indefinitely, and that the husband's immediate departure demonstrated a lack of such intention.

The Full Court, in dismissing the application for leave to appeal, affirmed the trial judge's reasoning. The Court held that the wife's argument, which relied on a strict interpretation of a commentary on domicile, did not accord with the *Domicile Act 1982*. The Act requires an intention to make one's home indefinitely in a country, not necessarily an intention to remain physically present without any temporary departure. The Court was satisfied that the husband formed the intention to make Australia his home indefinitely on 11 January 2000, and that this intention remained unchanged when the application was filed on 24 January 2000, despite his temporary absence in South Korea. Therefore, the husband had acquired a domicile of choice in Australia.

The application for leave to appeal was dismissed, and the application to adduce further evidence was allowed in part.