Jones & Michetti

Case [2022] FedCFamC1F 771

Federal Circuit and Family Court of Australia

(DIVISION 1)

Jones & Michetti [2022] FedCFamC1F 771

File number(s): TVC 1515 of 2021
Judgment of: MCNAB J
Date of judgment: 21 October 2022
Catchwords:  FAMILY LAW — JURISDICTION — De facto relationship — Where the parties were not in a de facto relationship for the purposes of Pt VIIIAB of the Family Law Act 1975 (Cth) (‘the Act’) — Where the applicant seeks property settlement orders pursuant to s 90SM of the Act — Where the respondent seeks a declaration that there is no de facto relationship pursuant to s 90RD of the Act – Where the parties were in an open relationship – Where the applicant was in a de facto relationship with someone else – Where the applicant was included in the respondent’s Will – Where the parties were in a sexual relationship for 16 years – Where both parties maintained separate residences and stayed together one night per week – Where the parties were financially independent but the respondent paid for the applicant’s holidays, some luxury gifts and contributed to the cost of her gender reassignment surgery and subsequent treatment
Legislation:  Family Law Act 1975 (Cth) s 4AA, s 90RD, s 90SM
Cases cited:

Corporation of the City Enfield v Development Assessment Commission (2000) 199 CLR 135

Cham & Sha [2015] FamCA 355

Jonah & White [2011] FamCA 221

Jonah & White [2012] FamCAFC 200

KQ v HAE [2007] 2 Qd R 32

Moby & Schulter [2010] FamCA 748

Truman v Truman (2008) 38 Fam LR 614

Vaughan v Hoskovich [2010] NSWSC 706

Division: Division 1 First Instance
Place: Melbourne
Number of paragraphs: 148
Date of hearing: 12 – 14 September
Solicitor for the Applicant: Self-Represented
Counsel for the Respondent: Mr Mellas
Solicitor for the Respondent: Nicholes Family Lawyers

ORDERS

TVC 1515 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS JONES

Applicant
AND:

MR MICHETTI

Respondent

order made by:

MCNAB J

DATE OF ORDER:

21 OCTOBER 2022

THE COURT DECLARES THAT:

1.Pursuant to ss 90RD and 4AA of the Family Law Act 1975 (Cth) no de facto relationship existed between the Applicant and the Respondent between 2003 and 23 November 2019.

THE COURT orders THAT:

1.The Applicant’s Amended Initiating Application filed 23 November 2021 be dismissed.

2.Within 14 days the Respondent file and serve any Application for costs, with supporting affidavits and written submissions limited to 4 A4 pages.

3.The Applicant file any response to an application for costs within 28 days.

4.The hearing of any Application for costs be fixed for hearing on a date to be advised after 28 November 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…

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Jones & Michetti [2022] FedCFamC1F 771
Case
[2022] FedCFamC1F 771
Decision Date

CaseChat Overview and Summary

The case of Jones & Michetti involved a dispute between two parties, who had been in a relationship for approximately 16 years. The respondent denied that there was ever a de facto relationship and sought a declaration that such a relationship never existed. The case was heard in the Family Court of Australia. The central issue the court had to decide was whether the parties were in a de facto relationship, as defined by the Family Law Act 1975. The court had to consider whether the parties were living together on a genuine domestic basis, taking into account all the circumstances of the relationship.

The court examined the evidence provided by both parties and concluded that while the parties were in a long-term relationship and cared for each other, they did not develop their relationship to the point where they were living together on a genuine domestic basis. The applicant had her home with another individual, and the respondent had his own home where the applicant spent time, but neither treated it as a common residence. The court found that the applicant had exaggerated the extent of care she had given the respondent and the level of interaction she had with his day-to-day life. The court preferred the respondent's evidence when there was a direct conflict in the evidence provided by both parties.

Based on the evidence and the legal principles applied, the court found that there was no de facto relationship between the parties. The court made a declaration that a de facto relationship never existed between the parties, dismissing the applicant's claim.

Orders

Orders of the court

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Background

Background to the litigation

Each party agrees that they were in a relationship for about 16 years, however the respondent denies that there was ever a de facto relationship and seeks by his response filed on 27 January 2022, a declaration that a de facto relationship never existed. Background The facts in this case are not straight forward – not in the sense they are particularly difficult to identify, but in the sense that they involve the complicated arrangements that these parties have entered into. In about 2002, the applicant was a male and entered into what was to become a long term de facto relationship with Ms B (“Ms B”) until about mid-2021. They lived together on a genuine domestic basis, first in a house in Suburb C and then subsequently from about 2011 in Suburb D. The applicant described her relationship with Ms B as “polyamorous”. Whilst the relationship between the applicant and Ms B was acknowledged by the parties and Ms B to be a de facto relationship, it was also an open relationship in the sense that they both had sex with other people including the respondent. At the time the relationship between Ms B and the applicant commenced, Ms B was working as a manager in industry, and also as a sex worker. The applicant was an educator but left that work to work in hospitality and as a sex worker for a period. Ms B continues to work as a sex worker. At the time these proceedings were issued, the applicant was working as a sex worker. The respondent holds interests in hospitality businesses. In about 2003, Ms B placed a post on a gay dating website in the then name of the applicant. The respondent responded to that post and met up with the applicant and Ms B. A sexual relationship commenced between all three of them, with the respondent spending weekends at the Suburb C house occupied by the applicant and Ms B. During that time neither of the parties or Ms B were in an exclusive sexual relationship and all of them had sexual relationships with others. It is alleged by the respondent that during this time he was involved in steady long term relationships with other men. The relationship between the parties and Ms B was not solely about sex. They seemed to get along and, as a result of the generosity of the respondent, enjoyed an active social life including going out for dinners with other people and going on overseas and interstate holidays, largely paid for by the respondent. The respondent plainly enjoys entertaining, eating out and spending time in the company of others at restaurants and nightclubs where he would often act as the host and pay for others. He was part of a dining club which involved a group of friends who would attend restaurants and the group from time to time included the applicant and occasionally Ms B as his guests. It is also apparent that he extended his generosity to a wide circle of friends and business associates, irrespective of whether he was in a sexual relationship with them. The relationship involving the applicant, respondent and Ms B continued until sometime in 2005. After a break of about 3 months, the applicant and respondent started seeing each other again with the applicant staying over at the respondent’s house about once per week (and very occasionally up to 3 nights). Ms B gave evidence that the continuation of that relationship was with her permission. The relationship between the applicant and Ms B continued throughout, with the applicant residing with Ms B and sharing the costs of that household.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Thus, whether or not a de facto relationship, as defined, exists will depend upon an assessment of all of the circumstances of the relationship, each to be given the weight the court thinks appropriate.Consideration I proceed on the basis that the question of whether parties are in a de facto relationship involves the central consideration of whether the parties were “couple living together on a genuine domestic basis”: Jonah & White [2012] FamCAFC 200 (at [32]). There is no requirement that the parties reside in one residence and the authorities and the legislation that I have been referred to acknowledges that a person can be engaged in more than one relationship. Further a person can have more than one home and the concept of “living together” does not import any concept of proportion of time: Moby v Schulter [2010] FamCA 748 at [140]; Jonah & White [2011] FamCA 221 at [65]; Cham & Sha [2015] FamCA 355 at [90]; Vaughan & Hoskovich [2010] NSWSC 706 at [53] & [58]. . There were considerable differences in parts of the evidence given by the applicant and respondent. This particularly arose in relation to the lack of care that the applicant had given the respondent at times when he was unwell or needed medical assistance or hospitalisation. The evidence demonstrates that the applicant had exaggerated the extent of care that she had extended and this was demonstrated by contemporaneous records including records generated by Uber used by the applicant. The applicant has tended to exaggerate the amount of time that she spent with the respondent and the level of interaction that she had with his day to day life. One such instance is the applicant’s evidence that she was active in supporting the respondent in his garden and looking after his house. The extent of the applicant’s contribution to the maintenance of the respondent’s property was limited to constructing a small pond, occasionally repotting plants, and cleaning up after her dogs. The respondent was consistent in his evidence and made appropriate concessions. The area that caused the court concern was in relation to the respondent seeking to deny that he had ever genuinely referred to the applicant as his partner or that the relationship between them was simply casual.[9] I deal with these matters below. [9] Court Book pg 366. On balance, I prefer the respondent’s evidence when there is a direct conflict in that evidence. The respondent gave detailed and cogent evidence both by affidavit and in oral evidence, in response to each of the matters raised by the applicant or the witness called on her behalf. I accept that evidence as truthful. There is no doubt that the parties were in a long term relationship and that they both cared about each other. However, that relationship did not develop to the point that the parties were in a relationship “living together on a genuine domestic basis”. Having considered the evidence in relation to the question of common residence, I find that the evidence does not support a finding that there was any common residence. The applicant had her home which she shared with Ms B, and the respondent had his home where the applicant spent time, but it was not regarded by either as a common residence. The applicant had a key for particular reasons when the respondent was travelling overseas. The applicant did not regularly live there when the respondent was absent and the respondent gave uncontested evidence that he had not asked the applicant to house sit since 2007 because of his concerns about the applicant’s treatment of his house. A small but significant detail in that the respondent gave evidence in response to the applicant’s claims that she treated the respondent’s house as her house and in particular, gave evidence with regards to the gardening at the respondent’s home.[10] The respondent gave unchallenged evidence that he enjoyed gardening and did his own or used a gardener. On one occasion when recovering from surgery, he asked the applicant to weed the front garden, the applicant asked for payment for this service. This is hardly suggestive that she treated that home as her own.[10] Court Book pg 105.