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Innocenti & Napoliello (No 2)

Innocenti & Napoliello (No 2)

Case [2022] FedCFamC1F 75 22 February 2022

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Innocenti & Napoliello (No 2) [2022] FedCFamC1F 75

File number(s): WOC 896 of 2018

Judgment of: CAMPTON J

Date of judgment: 22 February 2022

Catchwords: FAMILY LAW – COSTS – Where a declaration was made pursuant to s 90RD of the Family Law Act 1975 (Cth) that the parties were in a de facto relationship for a period of four years – Where the respondent resisted the making of a s 90RD declaration and denied that the parties were in a de facto relationship within the meaning of s 4AA of the Act –Where the applicant contended the parties were in a de facto relationship for a longer period of time than was found to be the case and was not wholly successful – Where the respondent’s absence of success in her challenge to jurisdiction is a justifying circumstance warranting an order for costs – Whether the respondent shall pay the applicant’s costs of the s 90RD proceedings, fixed in the sum of $12,000 and the applicant’s costs application fixed in the sum of $2,000, both payable within 21 days.

Legislation:
Family Law Act 1975 ss 4AA, 90RD, 90SM, 117

Federal Circuit and Family Court Act 2021 (Cth) s 67

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Schedule 3; r 12.07

Cases cited:
Anison & Anison (2019) FLC 93-908; [2019] FamFC 108

Atkins & Hunt [2017] FamCAFC 131

Idoport Pty Limited v National Australia Bank Limited & Ors, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23

Phillips & Hansford [2020] FamCAFC 28

Division: Division 1 First Instance

Number of paragraphs: 46

Date of hearing: 11 February 2022

Place: Sydney

Counsel for the Applicant: Ms Mitchell

Solicitor for the Applicant: Hansons Lawyers

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:

11 FEBRUARY 2022

THE COURT ORDERS THAT:
1.That within 21 days of the date of this order the respondent pay to the applicant his costs of and incidental to the s 90RD hearing determined by way of Orders made on 22 December 2021 in the sum of $12,000.
2.That within 21 days of the date of this order the respondent pay the applicant his costs of the Application in a Proceeding filed 28 January 2022 in the sum of $2,000.

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Innocenti & Napoliello (No 2)

Details

AGLC: Innocenti & Napoliello (No 2) [2022] FedCFamC1F 75
Case: [2022] FedCFamC1F 75
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the applicant, Mr Innocenti, and the respondent, Ms Napoliello, were involved in proceedings regarding a de facto relationship. Mr Innocenti sought a declaration under s 90RD of the Family Law Act 1975 (Cth) that the parties were in a de facto relationship for a period of four years. Ms Napoliello resisted the making of the declaration and denied that the parties were in a de facto relationship. The applicant contended that the parties were in a de facto relationship for a longer period of time than was found to be the case and was not wholly successful in his claim. The court was required to decide whether the respondent should pay the applicant's costs of the s 90RD proceedings and the costs application.

The court found that the absence of success of the respondent in her challenge to jurisdiction was a justifying circumstance to warrant an order for costs being made against the respondent. The court held that the respondent's position was not wholly successful in the proceedings, but the proceedings as a whole had not been unsuccessful. The court also rejected the submission that costs should be reserved until the determination of the applicant's s 90SM claim. The court found that the s 90RD issue was a discrete hearing event determined by factual findings and both parties had a raft of processes at their disposal to garner protection and insurance as to costs considerations and consequences of and in the purposes of the s 90SM dispute.

The court held that the respondent's absence of success in her challenge to jurisdiction was a justifying circumstance to warrant an order for costs being made against the respondent. The court also held that the nature of the case was not exceptional so as to warrant an order for indemnity costs. The court found it appropriate to fix an amount of party and party costs of the applicant of the s 90RD application as sought by way of his Application in a Proceedings for costs filed on 18 January 2022 in an amount of $12,000. The court also ordered that the respondent shall be ordered to pay the applicant's costs of the Costs Application at the sum agreed of $2,000, within 21 days of these orders.

In conclusion, the court ordered that within 21 days of the date of this order, the respondent pay to the applicant his costs of and incidental to the s 90RD hearing determined by way of Orders made on 22 December 2021 in the sum of $12,000 and his costs of the Application in a Proceeding filed 28 January 2022 in the sum of $2,000. The form of the order is subject to the entry in the Court's records.

Orders