Tai & Shih

[2022] FedCFamC1F 381

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Tai & Shih [2022] FedCFamC1F 381

File number(s):

MLC 7086 of 2021

Judgment of:

MCNAB J

Date of judgment:

31 May 2022 

Catchwords:

FAMILY LAW– divorce – whether the court has jurisdiction to hear the divorce – where the applicant has resided in Australia since June 2013 subject to a Student Graduation visa which expired in March 2022 and is currently subject to a bridging Visa – where the respondent submits that the applicant is not ordinarily resident in the jurisdiction – declaration made that the Court has jurisdiction to hear the application for divorce.

Legislation:

Australian Citizenship Act 2007 (Cth) s 3

Family Law Act 1975 (Cth) ss 39 (3), 4 (1), s 79

Cases cited:

Bashir and Bashir  (Unreported, Family Court of Australia, Kay J, 1 February 1995)

Logue v Hansen Technologies Ltd [2003] FCA 81

Mark v Mark [2004] EWCA Civ 168 (19 February 2004);  [2005] Fam 267

Re Taylor; Ex parte Natwest Australia Bank Limited(1992) 37 FCR 194

Russell & Russell (No 5) [2012] FamCA 917 at [48]-[63]

Shah, R (on the application of) v Barnet London Borough Council [1982] UKHL 14

Woodhead & Woodhead (1988) FLC 92 – 813

Division:

Division 1 First Instance

Number of paragraphs:

19

Date of last submission/s:

9 May 2022

Date of hearing:

9 May 2022

Place:

Melbourne

Counsel for the Applicant:

Mr J Williams

Solicitor for the Applicant:

Coote Family Law

Counsel for the Respondent:

Mr B Walmsley QC

Solicitor for the Respondent:

Verge Legal

ORDERS

MLC 7086 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS TAI Applicant
AND:	MR SHIH Respondent

ORDER MADE BY:	MCNAB J
DATE OF ORDER:	27 MAY 2022

THE COURT DECLARES THAT:

1.This Court has jurisdiction to hear the applicant’s application for a divorce filed on 25 June 2021

THE COURT ORDERS THAT:

2.The hearing of the contested divorce application be listed for hearing at the same time as the Application for orders pursuant to s. 79 of the Family Law Act, 1975.

THE COURT ORDERS BY CONSENT THAT:

3.The Court notes that the Husband consents to the jurisdiction of the Federal Circuit and Family Court of Australia determining the Husband and Wife’s respective property and compensation proceedings they have against each other.

4.The Husband and Wife be and are hereby restrained from proceeding with or prosecuting any property, compensation or civil claims that they have against each other arising from their marriage to the other in Country B.

5.The Husband and Wife do all acts and things to discontinue all property, compensation and civil claims that have been issued by them in Country B with no order or claim to any costs against the other arising from such discontinuance.

6.Within 14 days, the Husband file and serve an Amended Response to Initiating Application and any further Affidavit with respect to the property matters which he seeks to rely upon.

7.Within 21 days, each party provide to the other, via their respective solicitors, a list of documents sought by way of financial disclosure and comply with such request and any further request within 28 days of receipt of such request.

8.The question of costs be reserved to the trial date.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Tai & Shih has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

MCNAB J:

1. The court is required to determine whether it has jurisdiction to hear the applicant wife's application for a divorce which was filed on 25 June 2021. The jurisdiction of the court to determine the application is set out in section 39 (3) of the Family Law Act, 1975 (the Act). That section provides:

   Proceedings for a divorce order may be instituted under this Act if, at the date on which the application for the order is filed in a court, either party to the marriage:

   (a)       is an Australian citizen;

   (b)      is domiciled in Australia; or

   (c)is ordinarily resident in Australia and has been so resident for 1 year immediately preceding that date.

2. Section 4 of the Act provides that:

   Ordinarily resident includes habitually resident.

3. The applicant submits that the court has jurisdiction to hear the application for divorce on the grounds that she is both domiciled in Australia and is ordinarily resident in Australia and has been a resident for one year immediately prior to the application being made and filed.

4. The respondent disputes that this court has jurisdiction essentially because it is submitted that the applicant is not ordinarily resident in Australia as that expression is used in section 39 of the Act.

   Relevant Factual Background

5. The parties are both citizens of Country B. They commenced a relationship in Country B in 2003 and the child X (X) was born in 2004 (“the child”). The parties married in Country B in 2006. They divorced in August 2012 but resumed a relationship in March 2013 and re-married in 2016.

6. The parties and their son moved to live in Australia on 20 June 2013 with the wife giving evidence at [6] of her affidavit filed on 27 October 2021 that she moved to Australia on 20 June 2013 and has continued to live in Australia since that date.  She states that she briefly returned to Country B in 2016 is to get remarried.  At [13] of her affidavit filed on 30 November 2021 she states that she, the father and the child travelled to Australia on 20 June 2013 and “it was our joint intention that we would live in Australia permanently and that [X] would complete his schooling in Australia”.  She states that she considers Australia to be her home and intends to live here indefinitely. She has not returned to Country B since separation in March 2020 and has no intentions to visit Country B in the near future.

7. She states that she met her current partner, Mr D, in May 2020, commenced cohabitation in August 2020 and that they are in the process of applying for a partner visa. Since that affidavit was filed the child has returned to live with his father in Country B who had also returned to live there. The applicant has lived in Australia since June 2013 subject to a Student Graduation visa that is valid until March 2022.  She is currently remaining in Australia subject to a bridging visa.

8. At [10] – [11] of her affidavit filed on 1 February 2022 the wife deposes that prior to the child's return to Country B in or around December 2021 she engaged a migration agent to assist in obtaining an alternative visa to ensure that she could remain living in Australia indefinitely in the event that the child returned to Country B. She gives evidence that she instructed the migration agent to lodge a partner visa application on her behalf on 31 January 2022 and that once that partner visa has been lodged she will be granted a bridging visa which will come into effect on 16 March 2022 after the student guardian visa expires.

9. By written submissions filed on 4 May 2020, the wife submits that section 4 (1) of the Act defines ordinarily resident to include habitually resident and refers to Woodhead & Woodhead (1988) FLC 92 – 813 as authority for the proposition that the term ‘ordinarily resident’ is not a term of art but is to be given its ordinary meaning and is a question of fact as to whether a person is ordinarily resident. In response to a submission that the wife is not ordinarily resident because she was residing in Australia subject to a student guardian visa with a defined end date, the wife refers to evidence that she has not lived in Country B since 2013. She submits further that she does not own property in Country B and that shortly after their arrival in Australia the parties purchased a property in Suburb C as their home, with that property being in the wife's name and the wife having lived there since its purchase. The wife refers to evidence that it was the parties’ intention to live in Australia permanently with the husband applying for a skilled migrant visa in 2017 in order to facilitate this.

10. The husband relies on written submissions filed on 19 November 2021 [3] – [11].  The principal of submission is referred to above, being that because the wife came to Australia in 2013 under a student guardian visa she has not been ordinarily resident here because her stay here has been subject to the child completing his education and therefore for a particular purpose and for a finite time. By supplementary submissions filed on 5 May 2022 the respondent refers to the definition of ordinarily resident as found in the definition section, being section 3, of the Australian Citizenship Act 2007 (Cth) that section provides:

    "ordinarily resident": a person is taken to be ordinarily resident in a country if and only if:

    (a)       He or she has his or her home in that country; or

    (b)That country is the country of his or her permanent abode even if he or she is temporarily absent from that country.

    However, the person is taken not to be so resident if he or she resides in that country for a special or temporary purpose only. (Emphasis added)

11. It is submitted that the parties were in Australia for a special and temporary purpose of advancing their son's education and therefore it cannot be successfully argued that the applicant was ordinarily resident in Australia for the period commencing 25 June 2020 to 25 June 2021 because that period was within nine months of the expiration of the Visa allowing both the applicant and her son to remain in Australia. Both parties have referred to Woodhead & Woodhead in support of their respective submissions. In that decision, a Registrar determined that the husband was not ordinarily resident in Australia for the purposes of a divorce application because his residence in Australia was as a result of extradition from Papua New Guinea and subsequent conviction and imprisonment in Australia. Whilst imprisoned, the husband was subject to a Criminal Justice Entry Visa but there was evidence from officers of the Department of Immigration that he would be deported following the completion of his sentence. The Registrar concluded that the husband’s residence in Australia was neither settled nor voluntary given that his presence in Australia was found to be entirely against his will.

12. The decision of Woodhead & Woodhead relies principally on a decision of the House of Lords of Shah, R (on the application of) v Barnet London Borough Council [1982] UKHL 14 (Shah v Barnet LBC [1982]) for the purpose of ascertaining the meaning of the expression “ordinarily resident”. That decision involved the question of whether four foreign students qualified for an education grant on the basis that they had been ordinarily resident in the United Kingdom “throughout” the three years preceding the first year of their course. At 343 [G] of the reported decision Lord Scarman, who wrote the leading judgment said:

    "Unless, therefore, it can be shown that the statutory framework for the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that "ordinarily resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settle purposes as part of the regular order of his life for the time being, whether or short or of long duration.

    There is, of course, one important exception. If a man's presence in a particular place or country is unlawful, e.g. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence, (even though in a tax case the Crown may be able to do so): in re Abdul Mannan (1971) 1 WLR 859 and Reg. v Secretary of State for the Home Department, Ex parte Margueritte (1982) 3 WLR 753, C.A. There is, indeed, express provision to this effect in the Act of 1971, Section 33(2). But, even without this guidance, I would conclude that it was wrong in principal that a man could rely on his own unlawful act to secure an advantage which could have been obtained if he had acted lawfully."

13. At 347 [H] Lord Scarman noted:

    My Lords, the basic error of law in the judgments below was the failure by all the judges, save Lord Denning M.R., to appreciate the authoritative guidance given by this House in Levene v. Inland Revenue Commissioners [1928] A.C. 217 and Inland Revenue Commissioners v. Lysaght [1928] A.C. 348234 as to the natural and ordinary meaning of the words “ordinarily resident.”. They attached too much importance to the particular purpose of the residence; and too little to the evidence of a regular mode of life adopted voluntarily and for a settled purpose, whatever it be, whether study, business, work or pleasure. In so doing, they were influenced by their own views of policy and by the immigration status of the students.

    344 [C] And there must be a degree of settled purpose. The purpose may be one; or there may be several. It may be specific or general. All the law requires is that there is a settled purpose. This is not to say that the "propositus" intends to stay where he is indefinitely; indeed his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family, or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.

14. The husband submits that the wife would be in the position of being an illegal immigrant on the expiration of the guardian visa and therefore precluded from claiming to be ordinarily resident.  First, that submission is not supported by the unchallenged evidence of the wife that indicates she is now lawfully residing in Australia under a bridging visa and secondly, there is authority that a person who is not lawfully resident may still be ordinarily resident in the jurisdiction. In Bashir and Bashir (Unreported, Family Court of Australia, Kay J, 1 February 1995) Kay J stated:

    There is significant line of authority that one can obtain a domicile of choice even as an illegal immigrant.(see Lim v Lim and Titcumb 1973 VR 370, Salacup v Salacup (1993) FLC 92-431, In re Marriage of Dick (1993) 15 Cal. App. 4th 44, 18 Cal. Rptr. 2d 743)…

15. That statement was cited with approval by the England and Wales Court of Appeal decision of Mark v Mark [2004] EWCA Civ 168 (19 February 2004); [2005] Fam 267 at [40] and [80].

16. Shah v Barnet LBC [1982] has been referred to and relied upon in decisions regarding the definition of ordinarily resident in numerous cases including: Re Taylor; Ex parte Natwest Australia Bank Limited, Lockhart J (1992) 37 FCR 194 in the context of an application for security for costs; Logue v Hansen Technologies Ltd [2003] FCA 81, per Weinberg J (security for costs).

17. It has also been referred to in family cases in this country and in the United Kingdom where a similar form of words is used in the governing legislation: See Mark v Mark and the cases referred to therein; and Russell & Russell (No 5) [2012] FamCA 917 at [48]-[63] (per Young J).

18. In my view, the applicant wife has established by her evidence that she has been ordinarily resident in Australia as that expression is used in the Act since about June 2013 and the Court does have jurisdiction to entertain her application for a divorce. The fact that her residence here, until the departure of her son, has been subject to a visa dependant on her son’s education does not alter the fact that she has lived here for a settled purpose over an extended period. I do not regard the references to special or temporary purpose in the Australian Citizenship Act 2007 (Cth) to preclude a finding that the applicant was ordinarily resident for the purposes of s.39(3) of the Act. First, that definition appears in a different statutory context and secondly, the applicant’s continuous habitation in Australia since 2014 cannot reasonably be described as temporary. The Court is satisfied that the wife has been ordinarily resident in Australia in the 12 months preceding the making of the application for divorce.

19. Both parties submitted that in the event that I found that the Court had jurisdiction to entertain the application for divorce, I should make orders reflecting this and fix the matter for hearing in respect of the application for orders under s.79 of the Act and deal with the question of whether the parties were separated for more than 12 months at the time the application for divorce was filed at the same time. I will make orders accordingly.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab.

Associate:

Dated:       31 May 2022