Kempe v Webber [2003] ACTSC 7

4. 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.

5. 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"

6. There is a further requirement with a residential element. Subsection 11(1)(b)(i) adds the requirement that -

"(i) both parties to the relationship have resided in the ACT for at least 1/3 of the period of their relationship"

7. The defendant deposes, and the plaintiff concurs, that the parties ceased to reside in the Australian Capital Territory (the ACT) in early July 1999.

8. He states that the parties then relocated to Melbourne (in the State of Victoria), intending to reside there permanently. However, they separated on 25 August 2000. There are proceedings concerning parenting issues before the Family Court of Australia at Melbourne.

9. Initially the parties rented a house at 7 Odessa Street, St. Kilda East (a suburb of Melbourne). The plaintiff and the children continue to reside there. The defendant pays the rent.

10. The parties have two residential properties in the ACT. Each has been let since the parties left the ACT.

11. The children of the relationship attend school (or child care) in the State of Victoria convenient to the plaintiff's place of residence.

12. Since leaving the St. Kilda address, the defendant has resided continuously in Melbourne. His current address (at least as at 27 September 2002) was 96 Lennox Street, Richmond.

13. The plaintiff was physically present in the Territory on 14 August 2002 when these proceedings were initiated. She was staying during that week with a friend of hers, a Ms Wilkins. After filing the current application and supporting affidavit she returned to Melbourne to resume the care of the children.

14. There is in place a Family Court order obliging the plaintiff to notify the defendant of any intention to "relocate" to another State or Territory than Victoria.

15. The plaintiff, in her oral evidence did not dispute the proposition that her presence in the ACT on and about 14 August 2002 was solely to satisfy (if it did) s 11(1)(a) of the Act. She did not then, nor indeed since, have any intention of relocating her place of residence from Melbourne to the ACT.

16. The question before me is whether the plaintiff's presence in the ACT over that period of time for the purpose noted qualifies the plaintiff as "resident" in the ACT for the purpose of s 11(1)(a) the Act.

17. Mr Moshinsky QC, for the defendant contends that, in context, the word "resident" means more than mere presence in the ACT. It should be read as "ordinarily resident" or "habitually resident". There should be an element of permanence.

18. Mr Brzostowski, for the plaintiff, however, contends that even a temporary stay in the ACT, provided it involves sleeping overnight, will suffice. Otherwise, he points out, a de facto partner of many years standing might fail the residence test of each State and Territory which imposes such a test, and most do, if the parties even once, but recently, relocate and shortly thereafter separate.

19. That is, of course, a valid point. However, a de facto couple, together for more than the qualifying period, might adopt a relatively peripatetic life style and not spend more than one third of their time together in any one jurisdiction. The presence of children or a substantial contribution to the relationship of the kind referred to in s 15(1)(b) or (c) (ie to assets or welfare of children) merely lowers the qualifying period of two years for the relationship itself to be of sufficient duration to attract the power of the court to make an order.

20. There is, therefore, an element of happenstance in the conditions entitling a party to a de facto relationship to invoke an entitlement to an order concerning property or maintenance in any particular jurisdiction.

21. The term "resident" will, generally, take its meaning from its context. This is discussed in Dicey and Morris "Conflicts of Laws" 13th ed V1 pp 146-7 (Par 6 - 115).

22. In Re an Infant [1981] Qd R 225 Kneipp J was obliged to consider whether adoptive parents were "resident" in a foreign country (The Philippines) at the time an adoption was effected according to the laws of that country. They had been present in the Philippines continuously for 21 days during which time the adoption was effected. At 226-7, his Honour said:

"The terms `residence', `resident' and `resides' have been and are to be found in many statutes. There have been some variations in meanings which have been attached to them, depending on the context, but I think that I am correct in saying that almost invariably they have been construed by reference to the view that the primary meaning of `residence' is a permanent place of abode."

23. His Honour acknowledged that Williams J, in Re an Infant [1973] Qd R 116, had adopted the view that a temporary stay of 10 days was sufficient to qualify the adoptive parents as "resident" in the country of adoption. The purpose of the requirement, Williams J considered, was to enable the relevant authorities to investigate the suitability of the applicants for adoption. Thus, even temporary residence would suffice. Kneipp J did not agree preferring other authorities in New South Wales (Re an Infant G (1968) 87 WN (Pt 1) (NSW)), the United Kingdom; (In re an Adoption Application [1952] Ch 16) and Western Australia (In the adoption of D & N (1997) 1 SR (WA) 7). Each of those authorities supported the view Kneipp J took of the residential requirement that is, that it referred, at least, to a settled place of abode.

24. In In re an Adoption Application (supra), the word "reside" was not expressly qualified by such a term as "ordinarily" or "habitually". The applicants lived in England during the husband's periods of leave from employment in Nigeria. They intended to reside permanently in England after the husband's employment ended. They had bought a home in England for that purpose. Harman J did not consider that the applicants, during their periods of leave, "resided" in England. It was noted at 25 that, whilst a question of fact, -

"Residence denotes some degree of permanence. It does not necessarily mean the applicant has a home of his own, but that he has a settled headquarters in this country."

25. Myers J followed that decision in Re an Infant G (supra). His Honour had to construe a similar term in the Adoption of Children Act 1965 (NSW) s 8(1)(a). The facts in Re an Infant G (supra) were even more favourable to the applicants than those in the United Kingdom decision. They were United States citizens who had lived in Australia for the previous two years and expected to continue living in Australia for the next 12 months. Their temporary home was situated in New South Wales. They were to return to the United States of America at the conclusion of their posting in Australia. Though clearly not domiciled in Australia, were they then "resident" in New South Wales? His Honour was not satisfied that residence was established. However, the applicants had also failed to establish that the order, if made on the basis of residence, would be recognized in the United States of America. Either reason would have supported the dismissal of the adoption application.

26. The concept of being "ordinarily resident" clearly imparts a degree of permanence. In Regina v Barnet London Borough Council Ex Parte Shah [1983] 2 AC 309, Lord Scarman construed that phrase as follows, at 343-4.

"... 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 settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.

...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 that 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."

27. I have to say that that exegesis of "ordinarily resident" does not sit well with the facts of Re an Infant G (supra). I would have thought that living in a country for employment purposes for three years would qualify as being "resident" for that time.

28. I was referred to Hafza v Director General of Social Security [1985] FCA 164; (1985) 60 ALR 674. The case is of limited assistance but is nevertheless instructive. The statutory phrase to be construed was "usual place of residence". Clearly, this plaintiff could not satisfy that test.

"... 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.

30. Temporary absence does not terminate residence. His Honour said at 680:

"...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' ... It is important to observe, firstly, that a person may simultaneously be a resident in more than one place ...and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as `home', a change of intention may be decisive of the question whether residence in a particular place has been maintained."

31. The explanation offered by Wilcox J of the term "residence" does not depend on the qualification "usual" or "habitual" or "ordinary".

32. The question in the present case is not whether, in staying with Ms Wilkins, the plaintiff lost her status as a resident of Victoria. Plainly, she did not. The issue is whether she was also resident in the Australian Capital Territory at that time. There is a Full Court decision, Comcare Australia (Defence) v O'Dea (1998) 87 FCR 451, construing the phrase "place of residence" for the purposes of a compensation claim in respect of a journey between a "place of residence" and a "place of employment".

33. The respondent, a member of the Army, was posted to barracks for apprenticeship training. He lived at the barracks but before then and during leave lived at his parent's house at Traralgon. Was the latter his place of residence? He was injured in the course of a journey from the Traralgon residence to the barracks.

34. Applying the test formulated by Wilcox J in Hafza the Full Court (Wilcox, Sundberg and North JJ) concluded at 455:

"In our view the description of `residence' given in Hafza and applied by the Tribunal does not import the `intention' involved in the concept of domicile. One element of domicile is the animus manendi - the intention of remaining in a place permanently or indefinitely. That type of intention is not involved in the Hafza formulation. Nor do we accept the submission, ... that intention has no part to play in determining whether a person is resident in a particular place. Indeed it seems to us that in determining a person's residence, the intention of that person may be vital."

35. Hence the respondent's place of residence could be regarded as being at Traralgon. Further, the Court concluded that Traralgon could be regarded as the respondent's `normal' place of residence.

36. For present purposes the term "resident" is not qualified by an express word such as "normal" or "usual". It can include a temporary place of residence and, indeed, there can be more than one location at which a person is "resident".

37. Similar legislation in other jurisdictions qualifies the right to make an application within their jurisdictions by reference to similar requirements as appears in the Act (See 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)). Victoria and the Northern Territory require one or both of the parties to have "lived in" the jurisdiction on the day on which the application was made (see Property Law Act 1958 (Vic) s 280(a); De Facto Relationships Act 1991 (NT) s 15(a)).

38. The Property Law Act 1974 (Qld) imposes no residential requirement nor, indeed, any requirement that the cohabitation have occured in Queensland. The De Facto Relationships Act 1999 (Tas) similarly imposes no such requirement.

39. Given the Shorter Oxford English Dictionary definition of "reside" (to dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place), it seems to me that to be "resident" in a particular State or Territory is the same as "living" in the State or Territory.

40. The explanatory memorandum prepared for the purpose of the presentation of the Domestic Relationships Bill 1994 (ACT) notes the residential requirements later enacted but does not explain their purpose. The Second Reading speech (19 May 1994) of the then Attorney-General (now Justice) Connolly offers no insight on the issue either.

41. It is, I think, fair to conclude that the term "resident" is not used in any other than its ordinary or usual meaning. In my opinion, the test expounded by Wilcox J in Hafza (supra) is appropriate for present purposes. It is also consistent with the test adopted by Kneipp J in Re an Adoption (supra) where the context of family relationships is analogous to the subject matter of the Act_._

42. Consistently with that view and, no doubt, to avoid the lack of recognition of overseas adoptions merely because the adoptive parent(s) cannot establish a "place of residence" in the overseas jurisdiction, the Adoption Act 1993 (ACT) was enacted to provide an alternative to the residential requirement (see s 55 thereof).

43. Whether, as Butterworth's Australian Family Law Service suggests (at State Legislation Vol 1 at [50, 170.2]), the purpose of the residential requirement is to avoid "forum shopping" or to ensure a real connection with the forum chosen is difficult to discern.

44. Whatever may have been the policy reason for the choice made by the ACT Legislature (amongst other legislatures) it seems to me that this plaintiff, on no view of the ordinary meaning of the term "resident", could be said to have been so resident when this application was made. In no sense was Ms Wilkin's residence regarded by the plaintiff as her "home".

45. It therefore follows that the application was not validly made. The Court is not empowered to entertain it. It must be dismissed.

46. I recognize the inconvenience, indeed the potential injustice, of this result. Had the plaintiff decided to return to live in the ACT after the separation of the parties, orders might have been made, provided the time limit in s 13 had not been exceeded. The relationship plainly had a real connection with the ACT. There is property situated here.

47. However, I am bound to apply the clear meaning as it seems to me of s 11(1)(a) of the Act. If the legislature considers that the Act is too restricted in its coverage ordiscriminates unfairly between classes of de facto relationships it is, of course, open to it to amend the Act.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the plaintiff: Chris Crowley & Associates