Innocenti & Napoliello

Case [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

  1. 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…

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Innocenti & Napoliello [2021] FedCFamC1F 297
Case
[2021] FedCFamC1F 297
Decision Date

CaseChat Overview and Summary

Innocenti & Napoliello involved a dispute between Mr Innocenti and Ms Napoliello concerning the existence and duration of their de facto relationship, which was a prerequisite for the Family Court to hear Mr Innocenti’s application for financial orders. The case was heard over four days, culminating in a reserved judgment. Mr Innocenti claimed the relationship spanned from 2007 to 2016, whereas Ms Napoliello contended that any relationship was brief and ended in April 2014. The court was tasked with determining whether the parties were in a de facto relationship, the period of such a relationship, and whether financial orders under the Family Law Act were appropriate.

The central legal issues revolved around the interpretation of the concept of a de facto relationship under the Family Law Act, specifically under sections 4AA, 90RD, and 90SM. The court had to consider various factors, including the duration, nature, and extent of their common residence, the existence of a sexual relationship, financial dependence, mutual commitment, and the reputation and public aspects of the relationship. Additionally, the court had to weigh the evidence presented by both parties, including affidavits and case outlines, to ascertain the truth of their claims.

In reaching its decision, the court meticulously examined the evidence and testimonies provided by both Mr Innocenti and Ms Napoliello. The court found that the relationship between the parties had varying degrees of intimacy and commitment over different periods. For instance, while the relationship was more casual between 2007 and 2012, it seemed to gain seriousness in December 2012. However, the court noted that the relationship did not meet the threshold of a de facto relationship for the entire period claimed by Mr Innocenti. The court emphasised that a de facto relationship does not require the parties to live together full-time or for a specific proportion of time. Instead, the relationship must be genuine and domestic in nature. Based on the evidence, the court concluded that a de facto relationship existed between April 2012 and April 2014. Consequently, the court ordered the applicant to file an Amended Initiating Application and the respondent to file an Amended Response, with the matter to be listed for further consideration.

The court's final orders included directions for the parties to engage in a Family Dispute Resolution Conference, reflecting a procedural step aimed at resolving the financial aspects of the relationship. The court reserved its decision on the quantum of the financial orders pending further submissions and evidence.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 2HEARING 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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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 relationshipsMeaning 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