Alkema & Simic
[2025] FedCFamC1F 428
•16 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Alkema & Simic [2025] FedCFamC1F 428
File number MLC 2559 of 2025 Judgment of WILSON J Date of judgment 16 June 2025 Catchwords FAMILY LAW – PRACTICE AND PROCEDURE – six week adjournment application made by the respondent – respondent failed to appear at previous mention – respondent failing to appear as notified in emails sent from my chambers – respondent failed to comply with orders for filing evidence – no valid reason why an adjournment should be granted – adjournment application dismissed – trial to proceed undefended.
FAMILY LAW – DE FACTO RELATIONSHIP –whether a de facto relationship existed between the parties – applicant contending a de facto relationship of 26 years’ duration existed – respondent contending that no de facto relationship existed – de facto relationship found to have existed under s 4AA of the Family Law Act.
Legislation Family Law Act 1975 ss 4AA, 90SM, 102NA
Federal Circuit and Family Court of Australia Act 2021 s 149
Cases cited Daly & Vella [2023] FedCFamC1A 70
Fairbairn v Radecki (2022) 275 CLR 400
Sinclair & Whittaker [2013] FamCAFC 129
Division Division 1 First Instance Number of paragraphs 34 Date of hearing 12 and 16 June 2025 Place Melbourne Counsel for the applicant Mr D. McLeod Solicitor for the applicant Moxie Legal Counsel for the respondent Litigant in-person ORDERS
MLC 2559 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MS ALKEMA
Applicant
AND MR SIMIC
Respondent
ORDER MADE BY
WILSON J
DATE OF ORDER
16 JUNE 2025
THE COURT ORDERS THAT the respondent’s application for leave to appear and to participate in his defence to this proceeding is refused.
I DECLARE THAT a de facto relationship existed between the parties between 1998 to 2024.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym Alkema & Simic has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
THE ADJOURNMENT APPLICATION
On 12 March 2025 when the respondent was legally represented by counsel orders were made by a judicial registrar of Division 2 of this court prior to the case being transferred to Division 1 of this court ahead of a compliance and readiness hearing scheduled for 8 April 2025. Nothing out of the ordinary arose during the appearance before the judicial registrar.
On 8 April 2025 her Honour Judge Bender of Division 2 made various orders on the return of the compliance and readiness hearing ordered by the judicial registrar. Importantly, in addition to fixing the proceeding for trial to commence on Thursday, 12 June 2025 on an estimated duration of five days, her Honour transferred this proceeding to me pursuant to s 149 of the Federal Circuit and Family Court of Australia Act and made orders requiring the respondent to file and serve affidavit material on which he intended to rely by 4.00pm on 29 May 2025.
The respondent failed to comply with paragraph 5 of her Honour Judge Bender’s orders for the filing and service of affidavit material on which he intended to rely whether by the date ordered or at all.
The 8 April 2025 orders were significant in one respect, namely, the precise task I was to determine. It was to hear and determine the threshold issue of whether the parties were in a de facto relationship and also to hear submissions on orders to be made in the substantive property matter if I found that the parties were in a de facto relationship.
Those orders were not made by consent. However, the respondent was represented by counsel and is taken to have knowledge of the orders made that day. At 11.35am on Tuesday, 3 June 2025 the solicitors for the applicant sent an email to my associates asking whether the trial of the proceeding would in fact go ahead on the date fixed on 8 April 2025.
At 2.24pm the same day my associates sent an email to the applicant’s solicitors as well as to the respondent at the email address supplied by the applicant’s solicitors telling all email recipients that the trial would in fact commence on 12 June 2025 at 10.00am in accordance with the orders made on 8 April 2025.
After court had closed on 3 June 2025 the solicitors for the applicant sent my associates an email at 6.12pm informing me that the respondent had discontinued his legal representation on 23 May 2025 upon his solicitors filing a notice of ceasing to act (their words). The applicant’s solicitors complained –
(a)they had attempted to contact the respondent but without success;
(b)the respondent failed to file documents as ordered by her Honour Judge Bender on 8 April 2025;
(c)the respondent had failed to identify his selection of real estate appraisals by 16 May 2025 as previously ordered;
(d)s 102NA of the Family Law Act was enlivened by force of orders made by the Magistrates Court in May 2025 which were final orders in their operation; and
(e)the applicant’s solicitors sought a mention on 6 June 2025.
At 10.06 pm on 3 June 2025 my associates sent an email to the applicant’s solicitors as well as to the respondent at his last known email address telling the parties that this case would be heard by me at 10.00am on 6 June 2025 and that an in-person appearance was required. At 2.39pm on Thursday, 5 June 2025, that is to say the day before the scheduled appearance, my associates sent the applicant’s solicitors, the applicant’s counsel and the respondent an email reminding them that this proceeding had been listed for an urgent mention on 6 June 2025 at 10.00am.
The email also stated that the parties were required to attend in person in court 4E. At 10.00am on 6 June 2025 I heard the urgent mention of this proceeding. Mr McLeod of counsel appeared for the applicant. The respondent did not appear. The respondent subsequently asserted that he did not receive email notification of the listing of the urgent mention despite the relevant emails having been sent to his personal email address that he admitted was in fact the correct and functioning email address.
On 6 June 2025 Mr McLeod of counsel sought orders for the case to proceed on an undefended basis on 12 June 2025. Mr McLeod pointed out the self-evident dislocation the respondent orchestrated by his failure to comply with orders previously made. I told Mr McLeod that it may transpire that on the trial date the respondent may not appear in which case Mr McLeod’s application would be unopposed. I told Mr McLeod that equally the respondent may very well appear on 12 June 2025, despite his having taken no step to file any documentation previously ordered in which case the respondent may apply to adjourn or he may elect to proceed.
Both scenarios involved guesswork in which I was unwilling to engage.
I ordered the trial to proceed on 12 June 2025. I reserved Mr McLeod’s client’s costs and I ordered the respondent to apply for leave to proceed if he appeared on 12 June 2025.
The orders made on 12 June were published on the court’s portal. My associates sent the parties an email to that effect at 10.41 am on 16 June 2025.
On 12 June 2025 the case was called.
Mr McLeod appeared. The respondent appeared without legal representation. He said he needed an adjournment for six weeks. I asked why. He said he proposed calling up to eight witnesses. He gave me the names of three who he said had expressed their willingness to provide affidavit evidence. I asked why he had failed to provide that affidavit evidence when he was legally represented and within the time stipulated by the orders of her Honour Judge Bender. He said he was not legally represented. That was highly unlikely as his legal representation ceased on 23 May 2025 and drafts of proofs of witnesses he intended to call should have been highly developed by that date. The respondent informed me that he had not discussed how the details of the evidence each witness he proposed to call would illuminate his version of events beyond stating that in the view of each witness none were of the opinion that the respondent and the applicant were in a de facto relationship by reason of the fact that the respondent was in one or more other de facto relationships.
I asked the respondent whether he had familiarised himself with the provisions of the Family Law Act concerning the factors pointing to the existence of a de facto relationship. He said he had not. I told the respondent that he was required to obtain, file and serve all affidavits on which he relied prior to 10.00am on Monday 16 June.
In debate with Mr McLeod I informed him that it was conceivable that the respondent would wish to defend this application even though he has not filed affidavit material. I told Mr McLeod that it was not inconceivable that the respondent may ask to give viva voce evidence. Mr McLeod indicated he would address the application which the respondent made, if and when it was in fact made. The respondent pressed forcefully that he wished to be heard. I took the view that he should not be shut out from doing that.
I gave the respondent the balance of the morning on 12 June 2025 all of 13 June 2025 plus the weekend of 14 and 15 June 2025 to obtain affidavit material.
This was set against a backdrop where Mr McLeod submitted that his client’s circumstances were dire. He submitted that his client desperately needed the de facto issue determined and with that the property proceeding under s 90SM of the Family Law Act.
I took the view that the respondent’s request for a six-week adjournment was no more than an ambit claim, unsubstantiated in fact or need and that it must be refused.
Today, 16 June 2025, the respondent again appeared before me. He told me that he has still not complied with the requirement that I made on 6 June 2025 for him to make, file and serve affidavit material on which he intended to rely.
He required leave pursuant to my order made on 6 June 2025 to participate in this proceeding by reason of the fact that he continued to fail to comply with orders for the regular conduct of the trial. I see no justification for granting the respondent any further indulgence in this case. He has had an abundance of opportunity to get his house in order. He continually thwarts the regular conduct of litigation by saying that he will do things and doing precisely nothing to give effect to that expressed wish. I refuse leave for him to appear and to participate in the defence of this proceeding.
He has had more than enough time to advance his case and I do not accept that his failure to advance his own case has been orchestrated in whole or in part by the fact that he is no longer legally represented. The case will go ahead as an undefended case.
DE FACTO RELATIONSHIP DETERMINATION
Mr Simic has denied that a de facto relationship exists in this case. He nevertheless has entered into consent terms premised on the existence of a de facto relationship. That seemingly inconsistent position has warranted my investigating the sources of proof of the existence of a de facto relationship according to s 4AA of the Family Law Act. Mr Simic did not file any affidavit material in opposition to this proceeding. That was the subject of my ruling earlier today. It became necessary to pronounce upon whether, and if so, the extent of persuasion that I have reached for the purposes of s 4AA of the Family Law Act in respect of the matters canvassed in subparagraph (2) of the meaning of de facto relationship.
In my view evidence exists of the duration of the relationship and is to be found in paragraphs 8, 18, 54, 126 and 136 of the applicant’s affidavit made 15 May 2025.
I take the view that the nature and extent of their common residence is illustrated by the applicant in her affidavit made 15 May 2025 at paragraphs 25, 37, 38 and 44.
The applicant deposed in her affidavit made 15 May 2025 to the nature of the sexual relationship between the parties in paragraphs 27, 30, 31, 32 and 43.
Her superannuation statements and evidence of an inheritance received by the applicant and applied by her towards the relevant residence has been given in the applicant’s affidavit made 15 May 2025 in paragraph 80 are verification of the elements of s 4AA(2)(d).
As to s 4AA(2)(e), ownership of the relevant parcel of land was with the respondent. Acquisition of the property was with the respondent. The use of the property was joint as is evidenced from the duration of the relationship consequent upon their acquisition of the property. Ownership also is equitable in nature, not strictly legal.
As to paragraph 4AA(2)(f) – the degree of mutual commitment to a shared life – evidence is found within paragraphs 63, 64, 65 and 80 of the same affidavit.
Paragraph 4AA(2)(g) is not applicable, nor is 4AA(2)(h).
Evidence of the reputation and public aspect of the relationship is found in paragraph 54 of the applicant’s affidavit made 15 May 2025.
As subsection (3) itself provides, no particular finding in relation to any circumstances are to be regarded as being necessarily determinative of the question whether persons are in a de facto relationship, a point made in a number of authorities including Sinclair & Whittaker,[1] Fairbairn v Radecki[2] and Daly & Vella.[3]
[1] [2013] FamCAFC 129.
[2] (2022) 275 CLR 400.
[3] [2023] FedCFamC1A 70.
In those circumstances I find as a proven fact that a de facto relationship existed between the parties in the period 1998 to 2024. I therefore find against the respondent in that regard and declare the existence of a de facto relationship as urged by the applicant
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Wilson. Associate:
Dated: 16 June 2025
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