WA Case Notes 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.’
Case note of Laufer v Gear [2021] WASCA 2 INTRODUCTION In the recent decision of Laufer v Gear [2021] WASCA 2, the Court of Appeal (WA) dismissed an appeal by the de facto husband against a decision of O’Brien J in the Family Court of Western Australia, in which O’Brien J held that the de facto wife was “resident” in Western Australia on the day on which she made an application to the Family Court of WA. Section 205X(a) of the Family Court Act 1997 (WA) (“the Act”) provides that at least one of the de facto parties to an application seeking alteration of property interests must be resident in Western Australia on the day on which the application is made. The parties had each spent a significant proportion of their time in another country both during their relationship and post separation. The de facto husband appealed the decision of O’Brien J, contending the Court did not have power to make financial orders between the parties as neither party was resident in Western Australia on the day the application was made. Legal principles In regards to the meaning of “resident” the Court of Appeal held at paragraph 34: 34 “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. It ought nevertheless not be given a construction which is unnatural or unreasonable.” The Court went on to state at paragraphs 36 to 38 inclusive: 36 “‘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. 37 The factual circumstances which may amount to a sufficient nexus to constitute residence in a State are many and varied. Whether a person is a ‘resident’ is a question of fact or (and this really amounts to the same thing for present purposes) a question of fact and degree. 38 The person’s past and present intentions, although not determinative, will often bear upon the significance that is to be afforded to particular circumstances.” The Court held that while not imposing a singular test, the matters referred to in the decision of Hafza v Director General of Social Security (1985) 6 FCR 444 are relevant considerations as to whether a party is a ‘resident’ within the meaning of s 205X(a) of the Act. The Court quoted from the decision of Hafza v Director General of Social Security (supra) at paragraph 40 as follows: 40 “Wilcox J [in Hafza] did comment at 449: ‘... As a general concept residence includes
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)”
Discussion In this case, the de facto wife had made an initiating application in the Family Court of WA on 6 September 2016. The Court of Appeal held the de facto wife was a resident in Western Australia on the day on which the application was made on the basis of the following facts as found by the primary judge (paragraph 44): 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 during 2015 - 2016 and stayed for around three to 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.” Conclusion The Court of Appeal found, on the basis of the above facts, that “the de facto wife had done nothing to divest herself of the character of resident of Western Australia” and drew the inference that on the date
she made the application she was therefore a resident of WA. The Court dismissed the appeal by the de facto husband. The de facto wife had made a crossappeal however the Court found it unnecessary to address the merits of the cross-appeal and dismissed it for procedural reasons.
Dianne Caruso is a Senior Associate in the Family Law team at HHG Legal Group. Porter v Australian Broadcasting Corporation [2021] FCA 863 In Porter v Australian Broadcasting Corporation [2021] FCA 863, the Federal Court ordered the removal of the ABC’s unredacted defence to Christian Porter’s defamation claim from the Court file, so that the redacted parts cannot be seen by the public. The ABC and Porter agreed to this order as part of their settlement of the substantive proceedings, but Jagot J heard submissions from news publishers opposing the order before making it. Interestingly, Jagot J found that “the only proper grounds for making an order that a document be removed from a Court file … are also the grounds which permit the making of a suppression or nonpublication order” [44] – orders which the court has long accepted are “not lightly made” in view of the open justice principle. Jagot J suggested that the Federal Court Rules may need amendment [87], to the extent that they suggest that documents could be removed from the court file on some wider basis of “confidentiality” [91]. Her Honour said that parties “should not expect that a judge will necessarily make [such] orders on the basis of nothing more than [their] consent” and “should expect that a judge may need to be provided with evidence and submissions as to why such an order can and should be made” [82]. The settlement agreement only required the ABC and Porter to agree to the orders, and was not conditional on the court actually making them [101]. But Jagot J accepted that in substance, by refusing to make the orders, “the Court would be re-writing the contract of the parties” [104]. Not making the orders “may involve prejudice to the proper administration of justice by potentially discouraging parties from settling all elements of their dispute” [105]. It was also significant that Porter had applied to strike out the defence, and neither that application nor the merits of the defence would ever be determined in court [106]. In accordance with the parties’ agreement, Jagot J did not decide whether Porter was right to argue that the redacted portions of the defence constituted an abuse of process [114]. Jagot J said that the parties were “not obtaining ‘special treatment’ or extracting from the Court any protection greater than ‘ordinary parties’” [111], and did not address the factual substance of the proceedings in any detail. So, while “it is only in exceptional and special cases that courts are entitled to exclude public access to the processes with which they deal” [54], it seems that where one party has applied to strike out a pleading and both parties agree to suppress it as part of a settlement, that is exceptional enough. It would be interesting to know why the ABC, as a public broadcaster, felt that it was appropriate to agree to the suppression of its pleadings, but it seems unlikely that reasons could be given publicly for that decision without undermining the agreement.
Scott Young - Solicitor 71
