Innocenti & Napoliello
[2021] FedCFamC1F 297
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Innocenti & Napoliello [2021] FedCFamC1F 297
File number(s): WOC 896 of 2018 Judgment of: CAMPTON J Date of judgment: 21 December 2021 Catchwords: FAMILY LAW – JURISDICTION – De facto relationship – Whether a de facto relationship was in existence so as to enliven the jurisdiction of the Court – Consideration of the factors in s 4AA of the Family Law Act 1975 (Cth) – Where the Court was satisfied on the balance of probabilities that the parties had a relationship as a couple living together on a genuine domestic basis but not for the period asserted by the applicant – Declaration that de facto relationship existed between the parties. Legislation: Family Law Act 1975 (Cth) ss 4AA, 44, 90RD, 90SK, 90SM Cases cited: Clarence & Crisp (2016) FLC 93-728
Jennings v Jennings (1997) 22 FamLR 510
Jonah v White [2001] FamCA 221
Mayson v Wellard [2021] FamCAFC 1115
Division: Division 1 First Instance Number of paragraphs: 173 Date of hearing: 16–19 November 2021 Place: Sydney Counsel for the Applicant: Litigant in person Counsel for the Respondent: Mr Hodgson Solicitor for the Respondent: Mills Oakley ORDERS
WOC 896 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR INNOCENTI
Applicant
AND: MS NAPOLIELLO
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
21 DECEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to s 90RD of the Family Law Act1975 (Cth) it is declared that a de facto relationship commenced between Mr Innocenti and Ms Napoliello in April 2012 and terminated in November 2016.
2.Within 14 days, the applicant file and serve an amended Initiating Application, and the respondent within 14 days thereafter file and serve an amended Response to an Initiating Application.
3.The s 90SM application is listed before Judicial Registrar Ferreira at 10am on 28 February 2022.
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 the pseudonym Innocenti & Napoliello has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J
INTRODUCTION
By way of his Initiating Application filed on 4 September 2018 Mr Innocenti ("the applicant") sought orders for property adjustment pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”) arising from the termination of a de facto relationship he contended commenced in 2007 and ended in November of 2016. He sought an order that Ms Napoliello ("the respondent") pay to him the sum of $600,000 and an order for costs.
The respondent, by her Response filed on 23 October 2018 sought that the Initiating Application be dismissed by reason of:
(a)The total period of the alleged de facto relationship was less than two years (s 90SB of the Act); and
(b)The applicant did not make substantial contributions of the kind mentioned in s 90SM(4)(a), (b) or (c) of the Act; and
(c)The claim is vexatious and without merit in any filed application filed before this Court.
The respondent also sought costs.
The respondent said at trial that the relief recorded in her Response filed 23 October 2018 did not concede that a de facto relationship between she and the applicant, as contemplated within Part VIII AB of the Act, existed at any time.
The respondent’s primary contention at trial was that she and the applicant commenced an intimate relationship in 2011 and engaged in an exclusive personal relationship from December 2012 until May 2014.
The respondent’s alternate contention was that if a finding is made as to a de facto relationship having commenced and terminated between the parties, then the period of that relationship was less than two years. She did not identify the dates of commencement and termination of any de facto relationship for the purposes of this alternate contention. In any event, in this circumstance, she contended that the applicant did not make substantial contributions as to warrant an adjustment of property.
The next alternate contention of the respondent was that if a de facto relationship is found to have commenced at the date asserted by the applicant, such relationship terminated at the time the respondent said that the intimate relationship of the parties ceased, being either April or May 2014. In that circumstance, leave was required for the applicant to institute proceedings for relief pursuant to s 90SM of the Act out of time by way of s 44(6) of the Act, and such leave ought be refused.
The onus rests on the applicant to establish the existence of the de facto relationship between the parties within the meaning given by s 4AA of the Act. If that onus is not discharged, there is no jurisdiction pursuant to s 90 SM of the Act.
Counsel for the respondent identified the following as the relevant factual findings for the purposes of the trial:
(a)Whether a de facto relationship existed between the parties at any time;
(b)If it is found that a de facto relationship existed, the length of that relationship;
(c)If a de facto relationship is found to have existed, but for a period of less than two years, then:
(i)Whether the applicant made any substantial contributions of a kind referred to in s 90SM(4) of the Act; and
(ii)If so, whether a failure by the court to make an order altering the parties’ property interests would result in a serious injustice to the applicant;
(d)If a de facto relationship is found to have existed but ceased in 2014, whether leave should be granted to the applicant to institute proceedings out of time, involving a consideration of:
(i)Any hardship caused to the applicant should leave not be granted;
(ii)Any hardship or prejudice caused to the respondent should leave be granted;
(iii)The adequacy of any explanation by the applicant may have in instituting the proceedings.
For the reasons set out herein, I find that the parties engaged in a de facto relationship between April 2012 and November 2016, being a period of about four years and eight months. Accordingly findings (c) and (d) identified above need not be addressed by this judgment.
In submissions the applicant revised the quantum of the s 90SM order he would seek from the respondent in the event the s 90RD declaration was made from $600,000 to $150,000. Orders will be made as to the applicant filing an Amended Initiating Application and as to the respondent filing an Amended Response, with the matter being listed before a Judicial Registrar for consideration as to the making of directions for the parties to engage in a Family Dispute Resolution Conference.
WRITTEN EVIDENCE
The applicant relied upon the following documents:
·Affidavit of Mr Innocenti filed 4 September 2018
·Affidavit of Mr Innocenti filed 12 September 2019
·Affidavit of Mr Innocenti filed 26 September 2019
·Affidavit of Mr B Innocenti filed 12 September 2019
·Affidavit of Mr D filed 12 September 2019
·Affidavit of Mr C filed 12 September 2019
·Affidavit of Mr E filed 12 September 2019
·Affidavit of Mr G filed 12 September 2019
·Affidavit of Mr F filed 12 September 2019
·Case Outline of the applicant dated 10 November 2021 marked as Exhibit 1
The respondent relied upon the following documents:
·Affidavit of Ms Napoliello filed 23 October 2018, (“her 2018 affidavit”)
·Affidavit of Ms Napoliello filed 10 September 2019 (“her 2019 affidavit”)
·Affidavit of Ms H filed 4 September 2019
·Case Outline of the respondent filed 9 November 2021 marked as Exhibit 2
HEARING
The trial was conducted over four days commencing 16 November 2021. Judgment was reserved at the conclusion of the hearing.
PARTIES
The applicant, Mr Innocenti, was born in 1960. He was aged 61 at the date of hearing. The respondent, Ms Napoliello, was born in 1957. She was aged 64 at the date of hearing.
On the applicant’s case, the period of the de facto relationship was nine years, being the period from 2007 until November 2016.
While denying that the parties engaged in a de facto relationship, the respondent says that they had an intimate relationship from 2011 and an “exclusive relationship” from December 2012, with that exclusive relationship concluding in April 2014. The respondent’s case is that the period of the exclusive relationship is one year and five months.
It was uncontroversial that:
(a)
The applicant and the respondent from 2007 until 2016 resided in New South Wales, and hence any geographical requirement for the purposes of jurisdiction pursuant to
s 90SK of the Act is satisfied; and
(b)The applicant commenced living at the respondent’s property at J Street, Suburb K in New South Wales (“the Suburb K Property”) in April 2012 and remained living there until 16 November 2016; and
(c)The respondent also lived at that property throughout that period.
There are no children of the parties’ relationship.
THE RELEVANT LAW
The court’s power to hear and determine the applicant’s application for orders pursuant to
s 90SM is enlivened if the parties were in a de facto relationship. Section 90RD provides that:
90RD Declarations about existence of de facto relationships
(1) If:
(a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and
(b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.
(2)A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:
(a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b)whether there is a child of the de facto relationship;
(c)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(d)when the de facto relationship ended;
(e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.
Section 4AA relevantly provides the factors to be considered by the court in determining whether or not the parties were engaged in a de facto relationship. It is set out below:
4AA De facto relationships
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
When 2 persons are related by family
(6) For the purposes of subsection (1), 2 persons are related by family if:
(a)one is the child (including an adopted child) of the other; or
(b)one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c)they have a parent in common (who may be an adoptive parent of either or both of them).
BACKGROUND
Each of the parties had previous marriages.
The applicant has three children of his first marriage, namely Mr L Innocenti, Mr B Innocenti and Mr N Innocenti, each of whom are now adults. They were aged 10, 8, and 5 in 2007 and 15, 13, and 9 in April 2012.
The parties first met in 1990 and were in contact with one another for a period of about four years. The nature of their relationship during this period is disputed. They recommenced spending time with one another in 2007.
In 2007 the respondent was residing at a property at M Street, Q Town in New South Wales. She sold that property in 2008 and in the same year purchased a property at P Street, Q Town (“the Q Town Property”). She commenced to live in that property shortly thereafter.
On 17 June 2008, the respondent purchased a vacant plot of land at the Suburb K Property for $850,000, financed by way of savings and a mortgage. From 2009 she met the cost of the construction of a residence on the vacant land.
In late 2009, the respondent moved into the Suburb K Property and retained the Q Town Property as an investment. She received rental income from the Q Town Property prior to selling it in May 2012 for $960,000.
The respondent engaged the applicant as a handyman to work on the Suburb K and Q Town properties from 2009. At trial it was an agreed fact that from the time the applicant commenced working on the properties, until the time that he began living at the Suburb K Property:
(a)The applicant rendered invoices to the respondent for the work he undertook on the properties; and that
(b)The respondent paid those invoices.
Subsequent to their separation in late 2007, the applicant entered into consent property orders with his former wife. He continued to live in their matrimonial home at R Street, S Town (“the S Town Property”) until its sale in April 2012 by way of the implementation of those orders. The applicant received $375,548 from the proceeds of the sale. He did not record in his affidavit evidence when he received those funds. He implicitly accepted in cross-examination the respondent’s contention that they were received in November 2012.
Upon vacating the S Town Property in 2012, the applicant intended to rent a property owned by his mother and brother. That arrangement fell through when the proposed rental property was sold unexpectedly by his family.
The parties agreed that the respondent would instead move in to the Suburb K Property to occupy an area of the residence known as “the flat”. At that time, the flat was an unfinished room. Together the parties painted its walls and laid fresh carpet. The respondent purchased kirsch curtains to make it more comfortable for the applicant and his children in anticipation of them visiting.
The parties were in dispute as to what was said between them as to the terms of the living arrangements at Suburb K. There was no evidence that the respondent requested that the applicant pay, or that the applicant offered to pay, rent or any other direct financial contribution to the costs of the Suburb K Property at the time that he commenced to reside there.
The respondent remained living at the Suburb K Property until November 2016. At no point during that period did he pay rent or any occupation fee to the respondent. It was his case that he made contributions to outgoings and utilities for the property. This was disputed by the respondent. It was also his case that he made contributions by way of maintaining and improving the property. The extent of such work and the fact of he being paid by the respondent for that work was disputed.
It emerged during the oral evidence to be uncontroversial that the applicant expended $295,000 of his property settlement monies between November 2012 and November 2015. The applicant said that he applied between $35,000 and $40,000 of the monies to purchase his current Motor Vehicle 1, that he spent about $20,000 on the costs of a holiday in 2013 for him and his children to Country T (the respondent did not go on the holiday), and that he contributed a maximum of $10,000 towards works on the Suburb K Property. The applicant agreed that at November 2015, he had about $80,000 of his property settlement monies left and that these funds were exhausted by September 2019. When questioned about his application of the remaining funds other than for the above purposes he responded, “there was a gambling problem”. The quantum of his gambling was not established at trial.
On 7 September 2016 the respondent threatened to call the Police to facilitate the applicant’s removal from the Suburb K Property. The applicant vacated the flat at the Suburb K Property on 11 November 2016.
CREDIT
Credit assumes significance in determining some of the factual disputes that fall to be determined without independent corroboration.
The Applicant
For most of his oral evidence, he was straightforward and directly responsive to the questions asked of him, including making appropriate concessions when required to do so. At other times, he attempted to circumvent the subject matter of the question. One such topic was his recent and current income, where his responses to questions were avoidant and inconsistent. He said that his current income was in the range of $50,000 per annum. A short time later he said that he earnt between $35,000 and $40,000 over the past six months, and anticipated that level of income would continue. Other than to credit generally, the relevance of this evidence was to the s 44(6) leave issue. Notwithstanding these deficiencies, I found him to be a solid witness.
A primary challenge to his credit was the fact of he not having any documentation to objectively support or verify the fact of, and the particulars as to the extent of, his asserted work done to the Suburb K Property after April 2012. His consistent response to this repeated line of enquiry was to the effect that he was in a relationship with the respondent at the time and saw no reason to create or retain documents recording the nature and hours of work undertaken on the property. I find this explanation credible.
Mr E
In his affidavit the witness gave evidence as to working for the parties at the Suburb K Property “on and off for a period of eight months up until about November 2014”. He said that on all occasions that he worked on the property he “worked alongside Mr Innocenti [the applicant] who also carried out work”. He identified the work that he and the applicant did, including building sheds, paving, planting trees, fencing and general labouring. In cross-examination, he said that he worked on the property on at least one or two days each week during that eight-month period. He said that the applicant gave him directions as to the work he was to do “nearly all of the time”, that the applicant organised any materials for him to use in his works and that the applicant prepared the jobs at the site. He said he rendered invoices for the work that he undertook, that he issued those invoices to the respondent and that she paid them.
Mr E said that he refreshed his memory by looking at his invoices prior to swearing his affidavit.
He gave evidence as to continuing to attend the Suburb K Property between November 2014 and 2016 on weekends, once each month or two month period. He gave evidence in cross-examination as to his observation of the parties “living together as a couple”. Upon being questioned as to the foundations for those conclusions, he said he observed them “doing things together” when he visited, including going out for dinner and attending parties. He recalled with some particularity meeting the parties in Country T in 2015 when they attended a wedding at that destination, he being separately on holidays at that time.
Mr E presented as an excellent witness. The challenges to the contents of his written evidence were unsuccessful. His oral evidence reinforced and expanded on that contained in his affidavit. In my view he impressed as accurate and truthful. I accept his evidence.
Mr B Innocenti
The applicant’s son, Mr B Innocenti, gave evidence as to his and his brothers’ introduction to the respondent in 2008. He said that when he and his brothers spent time with their father prior to 2012 “[we] stayed at the S Town Property” and that the respondent spent time with him, his brothers and his father when she visited.
He gave evidence that he and his brothers stayed at the Suburb K Property every second weekend and during the school holiday periods from the time that his father commenced living there in April 2012, until the end of 2015 or early 2016. He said that he and his brothers would call the respondent their “weekend mum” and that they shared meals with the applicant and the respondent, usually prepared by his father. At times when they visited, his father, the respondent, he and his brothers attended social activities together such as the cinema, circuses and other events. He gave evidence as to the respondent purchasing gifts for him and his brothers at Christmas and on birthdays, her greeting him and his brothers a hug when they attended the Suburb K Property, and her making them feel “at home”. He gave evidence as to his observation of a comfortable and affectionate relationship between the respondent and his father at Suburb K, including how they shared household tasks and how they spoke about day-to-day things including the work that was being done on the Suburb K Property and their future plans for the property.
Mr B Innocenti’s written evidence was challenged in cross-examination. He confirmed that when he and his brothers attended the property they stayed with their father in the flat, not in the main house. He said that the respondent did not engage in the collection or delivery of him and his siblings from his mother’s home to spend time at the Suburb K Property, and that the respondent did not attend any of his school or sporting functions. He said that both his father and the respondent told him that in the event the respondent had attended on those occasions, conflict would occur with his mother. He gave evidence of observing his father and the respondent engaging in household tasks including washing the dishes, and said that he saw them kiss. He said in cross-examination that he had observed his father’s underwear and socks being in “Ms Napoliello’s room”.
Mr B Innocenti’s oral evidence was impressive. He engaged directly with the questions put to him, presenting as firm and unshaken. His written evidence expanded in cross-examination and was consistent with the evidence of his father. I found him to be a witness of truth. I accept his evidence.
Mr D
Mr D gave evidence in his affidavit as to visiting the Suburb K Property “many times”. In cross-examination he gave evidence as to assisting the applicant move into the Suburb K Property in 2012. He said during cross-examination that he had visited the property on about 12 occasions between 2012 and 2016, including attending for dinner. To his observation, the applicant and respondent got on well until 2016 and their separation was a surprise. I find that the evidence of this witness relevant to, but attracted little weight, the significant issues in this case.
Mr C
The affidavit of Mr C recorded evidence as to a limited number of social interactions between the parties and the witness between 2009 and late 2015. In cross-examination, he said that his observations of the social interactions between the parties occurred once in early 2012, again in 2013 and on two occasions in 2015. He said that they were “a normal and affectionate couple” who were comfortable in each other’s company. He said that there was nothing to make him think they were “other than in a relationship”. The four occasions of his observations reduced the probative value of his evidence.
Mr G
Mr G gave affidavit evidence that he resided in City V in Queensland until 2015, at which time he returned to the U Region. He was a partner of the respondent in a local business from 2016 until 2018. The material portion of his affidavit evidence went to the respondent telling the witness that she and the applicant “had separated” when the respondent attended at their place of work in late 2016.
This evidence was not materially challenged in cross-examination. He impressed as having a good reason for his clear recollection of the conversation. His concern at the time was the separation between the parties having possible adverse repercussions on his business enterprise with the respondent. He said in cross-examination that the respondent said to him in that conversation, “I have a great barrister from Victoria” and “he won’t get a cent from me”. I found him to be a solid, accurate witness.
Mr F
Mr F gave affidavit evidence that he was engaged as a tradesperson by the respondent to carry out renovation improvements to the Suburb K Property for a period of eight months between April and November 2014. His affidavit evidence recorded that while working at Suburb K “on occasions” the applicant “worked with him”. He said the applicant joined in on his conversations with the respondent about the work to be done and what was required for jobs. He said in his affidavit that when his work at the Suburb K Property finished in November 2014, the respondent said to him “we’ve run out of money at this stage so we will have to get [the applicant] to finish off as much as we can and pay as we go”. He gave evidence as to the Suburb K job being “incomplete” as at November 2014.
In cross-examination Mr F was shown a number of photographs of the Suburb K Property that had been marked into evidence as Exhibit 3. The thrust of his evidence on being shown the photographs was that more work had been done on the property after he had completed his engagement in November 2014. His evidence was not materially challenged during cross-examination. I accept his evidence.
The Respondent
The respondent relied at trial on an affidavit she filed earlier in the proceedings in 2018. Some parts of that sworn evidence in that affidavit contrasted her later affidavit on relevant subject matters, or presented a different version to the case she promoted at trial. To my observation, the respondent presented as a sophisticated person with a history of successfully operating businesses who did not suffer from deficiencies in her memory.
The deficiencies in the respondent’s evidence centred on:
(a)The periods of a sexual relationship between her and the applicant; and
(b)The fact of and nature of work undertaken by the applicant at the Suburb K Property after April 2012, and the payment made by her to the applicant for that work; and
(c)The extent of the common residence of the parties at the Suburb K Property, and the use made by them of that property; and
(d)The minimising in her case of the role she undertook in assisting the applicant parent his children when they spent time at the Suburb K Property.
Ms H
Ms H gave evidence in her affidavit as to a 32-year personal and professional association with the respondent. She considered the respondent to be her “best friend”. She gave evidence of the respondent having a serious accident when a horse kicked her in the face in December 2009. Her recollection was that the respondent called the applicant, who then found her on the property and took her to the emergency department of the W Hospital. She said that the applicant called her from hospital.
Her affidavit evidence recorded that the respondent identified the applicant while he was living at Suburb K as “my flat mate”.
She said in her written evidence that she had not at any time heard the applicant and respondent talk about their future together, that the applicant had rarely accompanied the respondent on social outings, on holidays, or to parties, and that the respondent “frequently” complained that the applicant made no financial contribution by way of rent or payment of household bills during the period that he lived at the Suburb K Property. The affidavit evidence of this witness did not record the frequency of her observations or of her conversations with the respondent.
She provided a loan to the respondent of $162,689 including interest over a five-year period, which she understood was to assist the applicant in paying mortgage repayments and costs associated with completing the renovation of the Suburb K Property. The loan advance was repaid on the completion of the sale of the Suburb K Property on 11 June 2019.
During cross-examination the witness encountered significant difficulties with her memory, saying on a number of occasions, “I am struggling to remember” or similar responses. She gave evidence as to her observations of “major renovations” being undertaken to the flat. She said she “struggled with dates” and that she was unsure when certain works were undertaken or had been completed. I can give little weight to the evidence of this witness. She had a poor recollection of the important factual issues in the case. I accept her evidence as to the fact and terms of the monies loaned to the respondent. The fact of the loan was not an issue in the litigation.
THE DURATION OF THE RELATIONSHIP
The parties first met in 1990. The applicant alleged they engaged in an intimate sexual relationship over a period of 4 years until 1994. The respondent denied having any form of intimate sexual relationship with the applicant during this period. She did not put into issue her having a relationship with, or being an acquaintance of, the applicant during this period. She said that she saw the applicant socially during this period.
The fact and terms of the relationship between the parties from 1990 until 1994 occupied a disproportionate amount of evidence and time in the trial. It had no relevance to the identified issues in dispute. The highest the applicant’s evidence achieved in cross-examination was that during this period he and the respondent met at motel rooms once or twice each year and would “meet up” on about six other occasions each year. He conceded that he and the respondent had not attended the other’s home during this period, and that he was unaware as to whether the respondent was married or even living with another person. The tenor of the applicant’s evidence was that their meetings were secreted from the observation of others. The ventilation of this subject matter was indicative of the disproportionate focus of the parties to the realities of the issues in dispute.
The applicant’s case was that the parties were in a de facto relationship for nine years from 2007 until November 2016.
The respondent conceded that they had some relationship from 2007, but strongly contended at trial that it was not intimate or sexual until 2011 when they commenced “casually dating”. She says that the sexual relationship between them was exclusive in nature for 15 months from December 2012 until May 2014.
The question to be determined here is as to the nature of the relationship during each of the relevant periods.
WHETHER A SEXUAL RELATIONSHIP EXISTS
The applicant’s clear evidence was that the parties commenced a sexual relationship in 2007 that it concluded upon him moving out of the Suburb K Property in late 2016.
The respondent denied that the parties were engaged in a sexual relationship when:
(a)They travelled together on holiday to Country T in 2009 and slept in the same bed in their hotel room throughout that trip, or
(b)They travelled to Melbourne together and attended a wedding there in 2009;
(c)They held an intimate 50th birthday party for their close friends at the Suburb K property in 2010; or
(d)They again travelled to Melbourne together for a wedding in 2012.
The respondent’s evidence as to the timeline of the parties’ sexual relationship was inconsistent. Her contentions across her affidavit and oral evidence were:
(a)That the parties commenced a “very casual relationship” towards the end of 2009;
(b)That the parties did not have a sexual relationship until 2011;
(c)That the parties “commenced a casual relationship in May 2012”;
(d)That in December 2012 the applicant commenced to spend overnights with the respondent in her bedroom at the Suburb K Property;
(e)That the parties did not have a sexual relationship from April or May 2014 until the applicant left the property in November 2016;
(f)That the parties continued to engage in sexual intercourse between May 2014 and November 2016.
In her affidavit filed 2018 affidavit the applicant said:
8. Mr Innocenti and I commenced a casual relationship in May 2012. The relationship became exclusive around December 2012 when we went on an overseas holiday and ceased to be in a relationship at all in mid-April 2014.
Later in the same affidavit she said:
18.After separation in April 2014, Mr Innocenti and I remained friends…
19. Since the date of separation in May 2014 and 11 November 2016, Mr Innocenti continued to reside in the room at the flat on the property.
And that:
22.Mr Innocenti and I did not sleep in the same bed together or have a sexual relationship from the date of separation until he left the property.
This evidence was in stark contrast to the evidence in the respondent’s 2019 affidavit at paragraph 71, where she said that “[d]uring May 2014 to November 2016 I had no relationship whatsoever with Mr Innocenti.” In the same paragraph, she records that in that period “we [occasionally] engaged in sexual intercourse after quite a few wines however Mr Innocenti would leave my room immediately after”. The respondent made no effort to explain the inconsistencies in her affidavit evidence.
The fact and terms of the sexual relationship between the parties and it being exclusive promotes a finding as to them being in a de facto relationship. The fact of the permanent separation reinforces that finding.
I find that a sexual relationship commenced in 2007 and continued until 2016. I prefer the applicant’s evidence on this topic. His evidence was firm and consistent when compared with the deficiencies in the respondent’s evidence. I find the respondent knew when the sexual relationship between the parties commenced and concluded, and that she had forgotten which version of her evidence was she preferred. I reject her evidence that she and the applicant were not engaged in an intimate sexual relationship when they travelled to Country T in 2009 and slept in the same bed at the hotel for that holiday, and when they engaged in the other activities identified in paragraph 66 of these reasons.
The finding as to a sexual relationship existing between the parties from 2007 until 2016 supports a finding as to a de facto relationship for that period.
THE NATURE AND EXTENT OF COMMON RESIDENCE
The parameters of the case presented by each of the parties in this matter requires an assessment as to the nature and extent of the common residence of them in two distinct periods, being from 2007 until April 2012, and then from April 2012 until November 2016. This is only one of the many factual matters that needs to be weighed in determining whether a de facto relationship exists.
Prior to April 2012, the home of the applicant was at the S Town Property.
From 2007 until April 2012 the home of the respondent was the Q Town property, and then from 2009, the Suburb K Property.
The applicant broadly said in his affidavit evidence that during the years prior to April 2012, he spent three to four nights each week at the Suburb K Property with the respondent. On these occasions, he said he shared the respondent’s bedroom. His evidence on this topic was initially firm and confident early in his cross-examination and then eroded. It was put to the applicant that by the end of 2007, he and the respondent “kept company”. He said, “we slept with each other” and that the respondent was one of his “closest half a dozen friends”. He later said that “onwards from 2007, Ms Napoliello was my partner” and that they stayed together for the “majority of weekends”. On a challenge to that assertion he said, “when the children were around, we didn’t see each other”. He conceded that they were with him each alternate weekend and for half of each school holiday period. He did not explain this omission from his written evidence. When pressed as to the frequency of time spent with the respondent he said that they spent time together each week on “possibly three or possibly four nights”. His evidence on this matter was inconsistent.
The respondent was firm in her oral and affidavit evidence as to the respondent not spending substantive leisure time at the Suburb K Property, nor she at his property, until 2012. She agreed that he attended the Suburb K Property during the day for part of this period to undertake work for which he was paid. It is counterintuitive, but not determinative, for the applicant to share a common residence with respondent and at the same time for him to render invoices for the work he did to that residence and for him to be paid for that work.
As to the period from 2007 until 2012, the evidence of the applicant at its highest is that he possibly spent three or four nights some weeks and no nights on other weeks at the Suburb K Property with the respondent. This fact alone may be sufficient to ground a finding of fact as to common residence from 2007 to April 2012, dependent on other facts relevant to that period.
There was no evidence as to the parties sharing or jointly undertaking household tasks or undertaking them on behalf of one another during this period. The applicant’s children did not spend time overnight at the respondent’s Suburb K Property until 2012.
Each of these factors are indicative of the parties not sharing a common residence between 2007 and 2012, and I so find. Such finding does not support the applicant’s case as to a finding of a de facto relationship from 2007.
The applicant was firm and unshaken in his evidence that he commenced to live at the Suburb K Property in April 2012 upon the completion of the sale of his S Town home.
The respondent contended at trial that the applicant “moved in” to the Suburb K Property between August and October 2012. This was in stark contrast to her affidavit evidence recording that the applicant commenced to reside at the Suburb K Property in May 2012. The respondent did not explain this inconsistency in her evidence.
During the cross-examination of the applicant by counsel for the respondent and during the cross-examination of the respondent by the applicant, the month of April 2012 was on a number of occasions specified as the time when the applicant commenced to reside at the Suburb K Property.
Having regard to the above matters and the timeline of the sale of the applicant’s S Town Property, I find that the applicant commenced to occupy the Suburb K Property in April 2012.
The applicant said in his affidavit filed 12 September 2019:
20.“Early in 2012 the property at R Street S Town was sold and in about April/May of that year [the respondent] said to me words to the effect of:- ‘Don’t rent – move in with me. We live together most of the time anyway.’ Thereafter I moved in to live with [the respondent] at J Street Suburb K and I remained living there until November 2016.”
The respondent in her 2018 affidavit said:
28.In or around May 2012, [the applicant] asked if he could move into my home on a temporary basis until he found something to buy or rent as his Family Law Proceedings with his former wife had finalised and his wife had taken out an AVO on him. I recall [the applicant] said to me words to the effect ‘Do you think I could spend some time with you at your place while I get my head together and find a place to buy or rent’.
29. At this time we were casually dating and as I thought [the applicant] would be actively looking for a place to rent or buy, I agreed to his request. I offered a converted storage area off the carport adjoining my home. To accommodate his request, we painted the room together and I purchased curtains to make it comfortable for him when his children stayed. He also had his own bathroom next to this room.
The oral evidence on the terms of the conversations between the parties prior to the applicant commencing to live at the Suburb K Property was inconsistent with their written evidence. I had the opportunity at the trial to observe and hear the parties give evidence and be cross-examined on this topic, and find it to be unlikely that the applicant and the respondent would jointly undertake the painting and preparation of the flat if the arrangement for the applicant to reside there was to be only temporary. Additionally, I am mindful of the inconsistencies in the respondent’s evidence as recorded earlier and later in these reasons. On balance I find that the parties intended the applicant to stay at the Suburb K Property into the foreseeable future. I accept the applicant’s evidence that it was likely that he could obtain alternative rental accommodation in April 2012 if he desired to do so. I do not accept the respondent’s evidence that the applicant at that time had no money and nowhere else to go.
At the time of the applicant commencing to occupy the Suburb K Property, I find that the parties commenced to share the housework between themselves. In his affidavit evidence, the applicant deposed to he and his sons assisting with “household chores such as mowing the lawn and washing our cars”. When challenged on the extent to which the parties shared their household chores, the respondent said that both parties did the cleaning, washing and ironing, for one another, save for their “personal clothes”. I accept that evidence. The applicant constructed two sheds at the Suburb K Property for the storage of his tools with the consent, or at least acquiescence, of the respondent.
The respondent accepted in cross-examination that the applicant purchased most of the food and groceries and that he did most of the cooking for the parties at Suburb K from April 2012 until he left the property. I so find. By the end of the evidence both parties agreed that after April 2012 they each spent their leisure time together in the kitchen and the lounge room of the Suburb K Property.
Each of the above factors support, and I find, that the applicant and the respondent shared a common residence from April 2012 until November 2016.
The fact and circumstances of the full time residence of the applicant at Suburb K from April 2012 support the applicant’s case as to a finding of a de facto relationship from that date.
THE DEGREE OF ANY FINANCIAL DEPENDENCE OR INTERDEPENDENCE, AND ANY ARRANGEMENT FOR FINANCIAL SUPPORT, BETWEEN THEM
It is uncontroversial that the parties maintained a substantial degree of separation of their financial identities over the period of the contended de facto relationship. They did not hold joint bank accounts or have other financial resources together.
The applicant contended that they each met their own expenses, that the respondent solely met the mortgage repayments and various other expenses in respect of the Suburb K Property except that he shared in paying the utility expenses associated with the Suburb K Property from April 2012. This assertion crumbled in cross-examination. He conceded that until early to mid-2013, he paid half of the utilities in cash, and then did not pay any monies for utilities for some time. He then said that “at the end of the relationship” he paid “maybe half” of the electricity and gas bill. He conceded that there was no objective documents to verify such payments. He could not when pressed quantify the funds he paid.
The respondent in her 2019 affidavit said:
13.I met all costs of my home, such as mortgage, gas, electricity, rates, insurance, maintenance, repairs and improvements. At no time did Mr Innocenti meet costs associated with my property…
In cross-examination the respondent maintained her blanket denial as to the applicant paying any monies for utilities.
Having closely observed each of the parties give evidence on this topic, I find it more likely than not that the applicant provided some unquantified cash sums on an irregular frequency in the 2013 year and for part of 2016 to the respondent to contribute to the Suburb K Property outgoings and utilities. I find that the respondent otherwise paid all of the mortgage instalments, outgoings and utilities for the Suburb K Property.
It was not part of the respondent’s evidence that she requested the applicant to contribute to rent or outgoings in respect of the Suburb K Property prior to 2014.
In her 2018 affidavit the respondent said:
13.During our relationship from December 2012 until May 2014, Mr Innocenti and I did not hold any joint finances together. We took it in turns to buy dinner and wine but that was the extent of our financial involvement together, other than when I paid him for rendered handyman services.
Her case was that she paid the applicant for his handyman services provided. This was inconsistent with what she said at paragraph 80 of her 2019 affidavit:
80.I say the work described above was in lieu of Mr Innocenti’s failure to pay any rental or outgoings to me while he resided on the Suburb K property.
In her 2019 affidavit, the respondent also said:
41.Mr Innocenti adamantly refused to pay rent and said "How about I work on the property instead of paying you?” I would continually have discussion with him that he needed to pay rent and if I needed him to do anything around the property he would invoice me.
The respondent deposed in that affidavit to arguments between the parties commencing in or around May 2014, saying:
60. Our relationship was well and truly over by May 2014. We argued constantly as Mr Innocenti would not get out of the house and still refused to pay rent or any outgoings with very little work if any being undertaken by him around the property.
She contends that in response to her requests for the applicant to contribute financially to the property, the applicant said “I have nowhere to go, I don’t have enough money to rent or buy anything and I’m scared my ex-wife will not allow me to have the children if I don’t have a decent home for them to visit.”
The applicant did not materially put into issue the fact of arguments on the subject matter of him paying monies to meet the cost of the outgoings of the Suburb K Property after 2014. I find that this subject matter was a source of friction between the parties from 2014.
The respondent engaged tradesmen to renovate the Suburb K Property. The respondent meet all of the payments of the invoices issued by the tradesman. One such tradesman was the applicant’s cousin, Mr X. At the commencement of his oral evidence, the applicant corrected paragraph 55 of his affidavit filed 12 September 2019, saying that the monies sourced to pay the tiler were not his funds but were paid from monies the respondent sourced from the loans funds provided by Ms H. The applicant said he physically provided the funds to the tiler.
The respondent deposed to experiencing “financial difficulties with financing the work on Suburb K”. The applicant conceded that the respondent had borrowed funds from her friend, Ms H of $162,689 between 2014 and 2018. In cross-examination he agreed that he knew that the respondent had run short of funds to complete the renovations to the Suburb K Property in 2014, that he had capacity to provide funds to the applicant during at that time, and that he did not. I find that the applicant had knowledge of the respondent running out of funds and that he did not offer to contribute to the costs of completing the Suburb K renovation, either by way of contribution or by way of loan.
In May 2015 the respondent engaged in a loan transaction with the applicant. She received an advance of $5,000 from the applicant on terms that it be repaid within 6 months. The respondent repaid the applicant the $5,000 on 2 December 2015.
Each party largely agreed during their respective cross-examinations, and I find, that they shared expenses such as the costs of entertainment and meals eaten-out together.
On an assessment of the evidence presented on this factor, I find that on balance it weighs against a finding of a de facto relationship between the parties.
THE OWNERSHIP, USE AND ACQUISITION OF THEIR PROPERTY
The parties did not jointly acquire property together.
The parties were in dispute as to:
(a)the fact of, and the extent of, the applicant undertaking physical labours in improving and maintaining the Suburb K Property after April 2012; and
(b)as to the applicant rendering to the respondent invoices for that work; and
(c)as to the respondent paying him for that labour and work; and
(d)as to the applicant meeting the cost of any of the materials used in completing those improvements during that period.
In her 2018 affidavit the respondent said:
13.During our relationship during from December 2012 until May 2014, Mr Innocenti and I did not hold any joint finances together. We took it in turns to buy dinner and wine but that was the extent of our financial involvement together, other than when I paid him for rendered handyman services….at no time did Mr Innocenti meet costs associated with my property and any work he did engage in he invoiced me and I paid him. I have copies of all the invoices and payments made.
It was open for the respondent to tender the invoices she identified in her affidavit evidence issued by the applicant for work done to the Suburb K Property. It was open for her to tender the documents such as bank statements recording her payment of those invoices. These documents would objectively support her case and disprove the evidence in the case of the applicant.
The respondent exhibited an 18 page document identified as a general ledger for the K Property for the period 1 January 2014 to 31 December 2016 to her 2019 affidavit. Paragraph 54 of that affidavit recorded that the ledger listed “trades people that I engaged over the period to attend to the renovations at the Suburb K Property”.
The respondent confirmed in her oral evidence that she had read the ledger prior to her cross-examination. She was asked to identify the entries in the ledger recording payments made to the applicant for work done to the Suburb K Property. She identified a single payment on 6 March 2014 of $959. She was unable to identify any other entries in the 18 pages recording other payments she had made to the applicant.
The respondent did not explain her failure to produce the invoices or to put them into evidence, or her failure to produce her bank statements recording her payments to the applicant for work done to the Suburb K Property or putting them into evidence. The clear inference is, and I find, that the respondent did not have such documents. I find that the applicant did not render invoices to the respondent for work he undertook at the Suburb K Property after April 2012, and that the respondent did not make payments to the applicant for that work. This finding is consistent with the evidence of the respondent in paragraph 80 of the respondent’s 2018 affidavit identified in paragraph 100 of these reasons. I find that the payment of $959 was, as the applicant said, a reimbursement of an expense he paid for the respondent.
I find that respondent elected to modify her evidence on the topic of requesting the applicant to pay an occupation fee while residing at the Suburb K Property when she perceived such changes would assist her case. I find that the respondent invited the applicant to occupy in the Suburb K Property in April 2012, and that she requested that he undertake work for her in lieu of him contributing to the outgoings in respect of that property.
The affidavit evidence and the cross-examination of the respondent identified that the Suburb K Property as a “high end” pristine 10-acre allotment made up of six paddocks, hundreds of metres of tree lines, hundreds of metres of small and large hedges that required trimming, including using a cherry picker to do so, and a 150 metre gravel driveway. Images of the property are contained in Exhibits 3.
During the course of her cross-examination, the respondent initially denied that the applicant undertook maintenance to the Suburb K Property between April 2012 and November 2016 stating, “I did it myself”. She later conceded significant maintenance works had been undertaken by the applicant. I find the respondent to be unreliable on this topic, and prefer the evidence of the applicant. It was uncontroversial that the respondent was engaged in a full time enterprise as a sales professional, being absent from the Suburb K Property for most of the time during the week and on Saturdays, while the applicant was physically present at the Suburb K Property on most days from April 2012 until November 2016. He did some work away from the property for others during that period, but as between the parties, he had the greater capacity to undertake maintenance work.
The respondent in her 2019 affidavit at paragraph 54 audaciously said that the applicant “did not work on the property on a full time basis or casually”.
At paragraph 78 of the same affidavit, she gave different evidence as to work undertaken by the applicant on the property between 2012 and 2015 that she described as “minor in nature”. She lists the work as putting the gravel on the 150 metre driveway, painting ceilings, building a timber courtyard wall, making a gate, trimming hedges, constructing door surrounds, building cupboards, installing ag pipe, restoring windows, moving fences, planting trees, mowing the property and building a shed.
The respondent did not explain these basal inconsistences in different parts of the same affidavit.
The applicant in his affidavit said that he built fences, planted trees, stripped out the flat, and worked alongside contracted workmen including Mr F and Mr E. He framed and rebuilt the stable area, completed reroofing, insulation and structural work on the kitchen, dining room, verandas, bedrooms and ensuite, and fit-out the property, including constructing windows, a vanity and a walk-in wardrobe.
The parties agreed that the charge out rate of the applicants work was $50 per hour. The applicant said in his affidavit filed on 26 September 2021 at paragraph 15 that he spent more than 4,500 hours working on the Suburb K Property between 2013 and 2016, and hence the value of his work completed on the property was $225,000. The respondent concedes that he expended 500 hours working on the property for the same period and hence the value of his work was $25,000.
The applicant was tested in cross-examination as to how he grounded his estimate of hours worked on the property. His responses were less than convincing. He waivered on his estimate but did not abandon it. That said he was the person who undertook the work on the property. He was for the most part physically present and available to work on and maintain the property while the respondent was at work each day. The evidence of Mr E and Mr F support the applicant’s estimate, at least for parts of the 2014 year. The thrust of Mr F’s evidence upon a review of the photographs at Exhibit 3 was that further work had been done on the property since he ceased to work there in 2014. This was consistent with the statements of the respondent made to Mr F in November 2014 identified in paragraph 51 of these reasons. The respondent had no expertise to opine as to the number of labour hours required to complete the renovation works on the property. She did not give evidence as to how she grounded her contention of 500 hours.
On balance, I prefer the applicant’s evidence as to the number of hours he expended on the property as being more reliable than that of the respondent. I find that he undertook greater work by way of improvement and maintenance of the Suburb K Property than was conceded by the respondent. The presentation and analysis of the evidence at trial does not permit me to make a reliable finding as to the value of that work.
The applicant originally said in cross-examination that he had paid $5,000 to the purchase of materials used in the renovation of the Suburb K Property after April 2012. He later said it was $10,000. He gave evidence as to the identity of some of the specific items he purchased. The respondent did not meaningfully challenge the applicant’s last version as to monies he spent on materials for the Suburb K property. I find that $10,000 represents the extent of his direct financial contribution by the applicant to the improvement of the Suburb K Property.
As to the use by each party of the Suburb K Property, by the end of the evidence, they were in broad agreement as to the shared use of the home’s common spaces, including its kitchen and lounge room. Each party deposed to hosting social events at the Suburb K Property, on which occasions they invited friends to the home to share meals and company, including for a birthday party to celebrate the applicant’s 50th birthday.
The respondent said in her 2018 affidavit:
12.During the course of our short relationship, Mr Innocenti remained living in separate living quarters I had set up and would stay overnight in my home from time to time when we were in a relationship. I resided otherwise in the main house on my own. We shared meal time together from time to time but not formally until December 2012 when I considered we became a couple.
33. In or about December 2012 our relationship became a little more serious and ceased in its entirety in May 2014. During this time Mr Innocenti remained living in the separate living quarters and would stay overnight in my home from time to time. I resided otherwise in the main house on my own. We did share the kitchen and lounge room upstairs. We occasionally shared a meal together but Mr Innocenti liked to cook and eat after 10pm so I would often cook for myself and go to my bedroom.
In her 2019 affidavit the respondent said:
44.We never shared a bedroom, bathroom or wardrobe. Mr Innocenti always stayed in his room, in fact I asked him to put a lock on my bedroom door so I felt safe. I considered that our relationship was well and truly over by May 2014.
I do not accept this part of the respondent’s evidence. I find the parties did share a bedroom after May 2014, and that their relationship continued after that date.
I find that on balance, the matters by way of this indicia support the applicant’s case as to a finding of a de facto relationship from April 2012 until November 2016
WHETHER THE RELATIONSHIP IS OR WAS REGISTERED UNDER A PRESCRIBED LAW OF A STATE OR TERRITORY AS A PRESCRIBED KIND OF RELATIONSHIP
The relationship was not registered under any prescribed law of a State or Territory. This fact supports a finding as to no de facto relationship between the parties.
THE CARE AND SUPPORT OF CHILDREN
There were no children of the relationship.
The applicant’s three children, who were aged 15, 13, and 9 in April 2012, slept in the flat each alternate weekend and half of each school holiday period.
In her 2018 affidavit, the respondent said:
12. …When Mr Innocenti spent time with his children however, I would go and see friends from time to time on these weekend[s], or he and the children would do their own thing exclusive of me.
This evidence was in contrast to the evidence of the applicant, to the evidence of Mr B Innocenti, and to the respondent’s own oral evidence.
The applicant deposed to his children from his previous marriage as having a close relationship with the respondent, and spending time with her when they visited the Suburb K Property.
In contrast to her affidavit evidence, the respondent broadly agreed with this proposition in cross-examination.
The evidence of Mr B Innocenti supported the applicant’s case on this factor. He deposed to the respondent giving him and his brothers gifts “at Christmas time and on birthdays”, to her greeting them with a hug upon their arrival at the Suburb K Property, and to her attending meals and social occasions with the family (being the applicant and his sons). In his oral evidence he said that on most occasions that he spent time with the respondent, his father was also present, except for “some mornings [when he] went out with [the respondent] to feed the horses together”, which he said they did together alone. In her cross-examination, the respondent agreed that she hugged the children upon their arrival and departure at the Suburb K Property and she recalled buying the children gifts.
I attach weight to, and accept, Mr B Innocenti’s evidence, which I found to be reliable, it being for the most part unchallenged in cross-examination.
The applicant gave evidence in his cross-examination that he and the respondent discussed how they wished to present themselves as a couple to the children, and he said that there was a “degree of intimacy” between the parties that he did not wish to expose the children to, for example, “going to bed [together]”. I accept that explanation.
It was uncontroversial that the respondent did not attend changeovers for the children between the applicant and his former wife, nor did she attend the school or co-curricular events of the children. Both the applicant and respondent agreed that when the children resided at Suburb K, the applicant stayed with them in the flat. I find that the parties made a decision to and in fact, shielded the applicant’s children from, conflict, to their credit.
The respondent agreed that she on occasion provided her motor vehicle for use by the applicant to collect and deliver his children for the purpose of time spent.
I find that a consideration of the matters under this category supports the applicant’s case as to a finding of a de facto relationship from April 2012.
THE REPUTATION AND PUBLIC ASPECTS OF THE RELATIONSHIP
The applicant’s case included affidavit evidence from several lay persons, including his son, contracted labourers who worked on the Suburb K Property, and the respondent’s former business partner, each of whom said they regarded the respondent and the applicant as being in a relationship at points of time between 2007 and November 2016.
I accept the evidence of Mr E as recorded in paragraph 41 of these reasons.
Mr B Innocenti gave oral evidence that he saw the parties do dishes together and cook together, and I accept the balance of his evidence as recorded in paragraphs 44 and 45 of these reasons.
Ms H, who gave evidence in the mother’s case, said that she too “was aware that [the respondent] had and was having a relationship with [the applicant] and often referred to him as ‘my flatmate’” during the period that the applicant resided at the Suburb K Property. I attach limited weight to Ms H’s evidence for the reasons already identified at paragraph 59 of this judgment.
The observations of these witnesses are not determinative but carry some weight in an assessment of the reputation and public aspects of the parties' relationship.
In her 2019 affidavit, the respondent said:
23. Outside of the period when we were a couple, Mr Innocenti and I did not attend any birthdays, weddings, funerals or functions together. We would have dinner together rarely.
On the respondent’s case, the parties were a ‘couple’ between December 2012 and May 2014. Notwithstanding this evidence, the respondent also conceded the matters identified in paragraph 66 of this judgment.
I accept that the applicant and respondent holidayed together. On two occasions they travelled overseas together to Country T. On the applicant’s evidence, they attended social occasions such as the weddings and birthdays of friends and family in Sydney and Melbourne together. That evidence was not subject to successful challenge by the respondent, who conceded that they had travelled to City V together once, Sydney once, Melbourne twice, and Canberra twice, although she said each of those trips took place before May 2014.
The parties both gave evidence of jointly hosting friends at the Suburb K Property.
The respondent met the applicant’s family, including his brothers and mother. She attended a Christmas gathering with them at the home of the applicant’s brother.
These findings provide limited support as to a finding of a de facto relationship.
CONCLUSION
Every relationship is different. Section 4AA of the Act expressly provides there is no specified circumstance for a finding that a de facto relationship existed.
The applicant in his case summary identified that between 2007 and 2012, the nature of his and the applicant’s relationship was as “boyfriend and girlfriend”. When asked why he recorded the relationship in these terms for that period he responded with “I can’t give you a reason”. The description of the relationship for that period by the applicant is not determinative, but it is evidence of the applicant’s state of mind.
The applicant did not put in issue that between 2007 and 2011 the respondent was in an intimate relationship with Mr O. The applicant said that he had not heard of Mr O, or met him, and that he was only aware of his existence of the time that Mr O died in 2014. This concession weighs against the parties being in a relationship as a couple living together on a genuine domestic basis prior to 2011. The respondent did however seek out the applicant for assistance when injured by the horse in December 2009. It was the applicant, and not Mr O, who took food and other items to the respondent at her home during the period she recovered from her injuries.
The respondent’s case is that between the time the applicant commenced to live at the Suburb K Property in April 2012, and until December 2012, she and the applicant retained the status of ‘casually dating’ but were not formally in a relationship. Her perception is that the relationship gained a level of seriousness in December 2012 when they travelled together to Country T, and it was only from this time that she considered them to be in an exclusive (but not de facto) relationship. In her 2018 affidavit she said, “We shared meal time together from time to time but not formally until December 2012 when I considered we became a couple.”
The respondent considers a ‘separation’ occurred in April or May 2014, notwithstanding that the applicant continued to reside at the Suburb K Property until November 2016. Her descriptions as to the parties being a couple during the period they were in a sexual relationship and occupying the same home and then separating are not themselves determinative of the fact of a de facto relationship, but are at least indicative of the respondent’s more recent perceptions.
As to the period from 2007 until April 2012, each party had their own residence. O J in Jonah v White [2001] FamCA 221at [140] identified the concept of “living together” as identified in s 4AA of the Act does not import any concept of proportionate time. It does not require a couple to live together full time basis. It may be that the parties “live together for no more than half the time during the relationship”.
I find that for the period 2007 until April 2012, the high point of the evidence in support of a finding of a de facto relationship for that period is that:
(a)The parties had a sexual relationship spending some nights during some weeks at the others home; and
(b)The applicant was the port of call for the respondent when she was injured by a horse at her home and required assistance to secure medical attention and during her convalescence; and
(c)They travelled together for holidays and for some family events; and
(d)They presented themselves as being in a personal relationship in social settings such as the respondent hosting the 50th birthday celebration for the applicant at her home in 2010.
I have found that the parties during this period did not share a common residence. The respondent was not active in the lives of the applicant’s children.
I find that prior to April 2012, the work undertaken by the applicant at either the Q Town or Suburb K properties of the respondent was by way of a commercial arrangement, characterised by invoices and payments.
I find these circumstances stand in sharp contrast to those for the period from April 2012, including as to:
(a)The fact of both parties engaging in the preparation of the flat at the Suburb K Property for occupation by the applicant in April 2012, with the arrangement for the applicant to use the furniture and other appliances in the Suburb K Property, his furniture being placed in storage. It remained in storage throughout the time he occupied Suburb K; and
(b)The applicant’s children after April 2012 having commenced to stay at the Suburb K Property with the respondent undertaking a greater contribution to supplement the applicant in their parenting; and
(c)The parties sharing household activities, including cooking and cleaning for one another;
(d)The fact of the applicant working on the respondent’s property and not rendering invoices to the respondent or receiving monies for his work completed.
I find that the circumstances of the parties’ relationship pivoted on the sale of the applicant’s former matrimonial home and the applicant occupying the Suburb K Property in April 2012. The full time residence of the applicant at the Suburb K Property, coupled with the agreed fact as to the parties being in a sexual relationship at that time, provides further support to a finding that they were in a de facto relationship at that time. I find that from April 2012 a circumstance of mutual support existed between the parties.
The case prosecuted by the respondent as to there being a separation in May 2014 was not supported by the evidence. The flavour of her evidence was that she was in an intimate personal relationship with another person from May 2014. There was no particulars of this other person, or of the terms of that intimate sexual relationship. As recorded in these reasons, a degree of friction kindled between the parties from this time, borne from the absence of the applicant’s financial contributions to the Suburb K Property, but they continued to live together on the same terms and in the same circumstances as had existed since April 2012.
As identified in the Full Court in Jennings v Jennings (1997) 22 FamLR 510, the day-to-day nature of a relationship can change but it does not necessarily follow that the fundamental nature of the relationship has changed. I find that such circumstances is applicable to the facts in this matter from 2014 until November 2016.
The Full Court in Mayson v Wellard [2021] FamCAFC 1115 at [43] confirmed that the correct test to identify when a de facto relationship ceases was that considered in Clarence & Crisp (2016) FLC 93-728, as follows:
51.Ultimately, however, we consider the real test (since it conforms with the statute as a matter of logic) was that identified by O JA earlier in H v P [[2011] WASCA 78]:
56 ... a de facto relationship is inherently terminable at any time, and continues to exist only insofar as the indicia which give the relationship its ... character continue to exist.
52.Looked at in this way, the task of determining whether a relationship has ended at or before a particular date is precisely the same task that must be performed when determining whether a de facto relationship exists in the first place – i.e. by reference to the indicia laid down in the legislation…
(Footnote omitted)
I find that the respondent has attempted to craft a distorted image of the circumstances of the relationship between the parties for the period from April 2012 until November 2016 for forensic gain. That said, I find that the relationship between parties significantly soured from September 2016 when the respondent threatened to enlist the assistance of the Police until the applicant left the Suburb K Property on 11 November 2016.
There are countervailing facts in this matter, but taken together, the evidence supports a finding that the applicant and the respondent were “living together as a couple” on a genuine domestic basis from the period April 2012 to November 2016. I find that they lived together in a de facto relationship for the purposes of the proceedings under s 90SM of the Act for that period.
For all of the foregoing reasons, I make the orders as set out in the forefront of this judgment.
I certify that the preceding one hundred and seventy-three (173) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 21 December 2021