Family Court Jurisdiction

Can a person whose origins are from a country not being Australia who is subject to a Study Visa (which has been cancelled and is currently on a temporary Visa) apply for a divorce whilst in Australia

Section 39(3) of the Family Law Act 1974 (as amended) (“the Act”) provides the jurisdiction upon which an Applicant is entitled to be heard in a proceeding for a divorce. The provision provides that the person must be an Australian citizen, domiciled in Australia or ordinarily resident in Australia and has been resident for one year immediately preceding that date. The question is as to whether being ordinarily resident means that being present or living here lawfully.

The definition of Matrimonial Cause incorporates proceedings between a parties to a marriage or by the parties to a marriage for a divorce under Sub-section (a) of Section 39. Section 9(4) of the Act provides that proceedings for a divorce are not covered within that provision. Otherwise the circumstances that a party is simply present in Australia would have been sufficient. What then is ordinarily resident pursuant to Section 39.

In the matter of Raymond Marshall Woodhead and Lesley Joanne Woodhead 1997 FAMCA 42 the Family Court held where the husband was resident as a result of a Criminal Justice Entry Visa and was required to be in Australia relating to him being a prisoner. The husband in that case considered he had been kidnapped unlawfully by Australian authorities. The Court referred to a leading authority in common law jurisdictions on the meaning of the words “ordinarily resident”. They referred to the case of Akbarali v Brent London Borough Council (1983) 2AC 309. In that case Lord Scarman concluded “Unless therefore it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning I unhesitatingly subscribed 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 a short or long duration“. Lord Scarman outlined the developed of law and made the following observations “Ordinary residence is not a term of art in English law. It embodies an idea of which parliament has made increasing use in the statute law of the United Kingdom since the beginning of the nineteenth century. The words have been a feature of the Income Tax Acts since 1806. They were used in English Family Law when it was decided to give a wife the right to petition for divorce notwithstanding the foreign domicile of her husband. Ordinary or habitual residence has in effect now supplanted domicile as the test of jurisdiction in Family Law“. His Honour then referred to the words “ordinary residence” used in two tax cases and it was said to mean “I think that ordinary residence denotes residence in a place with some degree of continuity and apart from accidental or temporary absences“. He also referred to a case of IRC v Lysart (1928) AC3234 wherein Viscount Sumnor said “I think the converse to ordinarily is extraordinarily and that part of the regular order of a man’s life adopted voluntarily and for settled purposes is not extraordinarily“.

The Court further commented that if a man’s home is in Australia a mere temporary absence will not prevent his being ordinarily resident in Australia. It is question of fact and degree at what point temporary absence (from Australia) might, if sufficiently prolonged, prevent it being proper to continue to regard him as ordinarily resident in Australia. His Honour further commented in respect of the authors of Australian Private International Law who state that in the context of domestic jurisdiction Section 39 qualifies resident not only by the inclusion of the adverb “ordinarily” but also by the additional requirement that such residence continue for one year. The latter requirement necessarily and by itself imposes a more substantial connection. While there may be a difference between “resident” and “ordinarily resident” there is less difference between “resident for one year” and “ordinarily resident for one year” though the decision may demonstrate that this is not invariably the case. The facts of that case were that the applicant husband was to be present for at least three years (clearly distinguishable).

At the same time his Lordship pointed out that in many cases of ordinary speech one residence at a time is the underlying assumption and though a man may be the occupier of two houses he is thought of as only resident in one he lives in at the time in question. The word “ordinarily resident in Australia” expresses an alternative to “personally present in Australia” as has been utilized in the Act. If the legislation had intended present to be the intent those words would have been used.The Court however referred to a decision of Lord Scarman wherein Lord Scarman noted that “There is of course one important exception. If a man’s presence in a particular place or country is unlawful that is, he is in breach of immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence. It would be wrong to conclude that in principle that a man could rely on his own unlawful act to secure an advantage which could have been obtained if he had acted lawfully“.

In that case he was lawfully present in Australia as a result of a Criminal Justice Entry Visa.
Residents in this regard must be voluntarily adopted and for a settled purposes. Under the current facts the party is in Australia on a temporary Visa whilst he disputes the cancellation of his Study Visa.
Once his Visa is re-established his Visa is for a short period of time. The real question is then as to whether he intends to remain in Australia or as to whether he wishes to return to his country of origin. The Court in the case under review noted that the involuntary nature of his existence and residence in Australia was such that he cannot act on an intention to stay in Australia until such time as he is released. This confirms the principle that it is the intent of the party as to whether they intend to stay in Australia after the Visa and for an intent to remain a resident.
Accordingly, in respect to the party being in Australia on a temporary Visa due to the student Visa no longer being valid then clearly the applicant is in the country without an opportunity to call the country his residence. Having regard to the principles set out above, as the applicant is in the country temporarily he will not be entitled to rely on that presence as constituting “ordinarily resident” in the country and the Family Court will not have jurisdiction to hear the application.

If the student Visa is reinstated the key issue will be whether there is a prospect for the applicant’s place of residence to be Australia and that he/she may intend to apply for a permanent Visa upon expiry of the Student Visa.

If there is no such prospect then having regard to the decisions set out above, it is likely that the Family Court would not have jurisdiction to hear the divorce application.

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