Cizek & Mihov

Case [2024] FedCFamC1A 151

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Cizek & Mihov [2024] FedCFamC1A 151

Appeal from: Cizek & Mihov [2024] FedCFamC2F 584
Appeal number: NAA 137 of 2024
File number: MLC 13083 of 2023
Judgment of: AUSTIN J
Date of judgment: 5 September 2024
Catchwords: FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Where the primary judge declared a de facto relationship never existed between the parties – Where the appellant contends the parties were in a de facto relationship over 12 years – Where the primary judge found the parties did not have a mutual commitment to a shared life – Where there was no error in the approach taken by the primary judge in assessing the parties’ respective credibility – Where the primary judge did not act contrary to the governing legal principles in s 4AA(2) of the Family Law Act 1975 (Cth) – Appeal dismissed – Appellant to pay the party/party costs of the respondent.
Legislation:

Family Law Act 1975 (Cth) Pt VIIAB, s 4AA

Succession Act 2006 (NSW)
Cases cited:

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17

Colburn & Cleese (2022) FLC 94-105; [2022] FedCFamC1A 147

De Winter and De Winter (1979) FLC 90-605

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Fairbairn & Radecki (2022) 275 CLR 400; [2022] HCA 18

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Katsilis v Broken Hill Pty Ltd (1977) 18 ALR 181

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Lennon & Sanil (2020) FLC 93-962; [2020] FamCAFC 109

Locke & Norton [2014] FamCA 811

McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8; [1934] 8 WCR 362

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Nelson v Nelson (1995) 184 CLR 538; [1996] HCA 25

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

Sadiq v NSW Trustee and Guardian (2016) 14 ASTLR 577; [2016] NSWCA 62

Sadiq v NSW Trustee and Guardian [2015] NSWSC 716

Shelby & Rylan [2022] FedCFamC1A 143

Sinclair & Whittaker (2013) FLC 93-551; [2013] FamCAFC 129

State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3

Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

Vetter v Lake Macquarie City Council (2001) 202 CLR 439

Continue reading Cizek & Mihov

Sign in free to access the full text

Details
AGLC
Cizek & Mihov [2024] FedCFamC1A 151
Case
[2024] FedCFamC1A 151
Decision Date

CaseChat Overview and Summary

The appeal in Cizek & Mihov was brought before the Federal Circuit and Family Court of Australia, Appellate Division, to challenge a primary judge's determination that no de facto relationship existed between the appellant and the respondent. The appellant had sought property adjustment orders, asserting a de facto relationship over 12 years, while the respondent denied any such relationship. The primary judge, after a five-day hearing, concluded that the parties did not share a mutual commitment to a shared life, thus rejecting the existence of a de facto relationship.

The primary legal issue the court had to address was whether the primary judge's assessment of the parties' relationship and his conclusions on the existence of a de facto relationship were correct. The appeal court had to determine whether the primary judge erred in his approach to assessing the parties' credibility and whether he correctly applied the relevant legal principles under section 4AA(2) of the Family Law Act 1975 (Cth). The appeal court found that the primary judge's approach was not flawed and that he correctly applied the governing legal principles. The court held that the primary judge's findings were consistent with the evidence presented and that there was no error in his assessment of the parties' mutual commitment to a shared life.

The appeal court dismissed the appeal and ordered the appellant to pay the respondent's costs of the appeal, which were assessed at $30,000. The court noted that the appellant had sufficient funds to pay for the appeal and did not adequately challenge the quantum of the costs. The court further noted that the amount paid by the appellant as security for costs would be retained by the respondent to satisfy the costs order. The appeal court's decision was grounded in the principle that the existence of a de facto relationship is a factual determination, and the appeal court found no grounds to overturn the primary judge's findings.

Orders

Orders of the court

NAA 137 of 2024

MLC 13083 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS CIZEK

Appellant

AND:

MR MIHOV

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

5 SEPTEMBER 2024

THE COURT ORDERS THAT:

1. The Amended Notice of Appeal filed on 7 August 2024 is dismissed.

2. The appellant shall pay the respondent’s party/party costs of and incidental to the appeal, fixed in the sum of $30,000, for which purpose the monies paid by the appellant to the respondent’s lawyers by way of security for costs pursuant to Order 1 made by the appeal registrar on 8 July 2024 shall be retained by the respondent.

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).

Background

Background to the litigation

The appeal is dismissed for the reasons which follow.BACKGROUND The appellant commenced proceedings seeking property adjustment orders against the respondent in November 2023. She alleged, and sought a declaration in terms, that the parties had been in a de facto relationship over some 12 years covering two discrete periods, being:(a)from 2011 until late July 2013; and(b)from July 2014 until late July 2023. The respondent denied there had been any de facto relationship between them and conversely sought a declaration to that effect. With the parties’ consent, the threshold issue about the existence of the de facto relationship was listed for separate hearing before the primary judge. The hearing spanned five days in March and April 2024, after which judgment was reserved and delivered a few weeks later in May 2024. In lengthy and thorough reasons for judgment, the primary judge reached these critical conclusions:276.I am satisfied that the [appellant] was committed to a relationship which provided for her: to live separately from the respondent and to remain doing so; a life of travel with and without the respondent; to attend at and host social events with or without the respondent; the freedom to simultaneously engage in other romantic relationships; and to be able to rely on the respondent absolutely financially supporting her and her children. 277.I am satisfied that the respondent was committed to a monogamous relationship with the [appellant] in which he was hopeful that they would: live together in a common residence all of the time in the future, but settled for much less than even sharing a common residence for even part of the week; travel together; attend and host social events together; pursue their shared philanthropic ambitions with the [appellant] having her own financial independence within that endeavour; and jointly rather than independently share his considerable wealth. 278.The respondent was unwilling to continue providing the [appellant] with unlimited financial support in a relationship that was not what he wanted and was unlikely to progress, and the [appellant] was unwilling to commit to their relationship in a manner other than which she wanted and resisted progressing. I am satisfied that the evidence supports the respondent’s belief that the [appellant] was keeping him at arms-length in order to maintain the relationship for financial purposes whilst not give too much of herself and her life in return. 279.The [appellant] bears the onus of proof. I am satisfied that the respondent was committed to sharing life with the [appellant]. However, I am not satisfied that the [appellant] has established, on the balance of probabilities, that she shared that commitment. There was minimal, if any, degree of mutual commitment to the same shared life. 280.Accordingly, I am satisfied, as submitted by Counsel for the respondent, that there was no “meeting of the minds”, and the parties were in fact committed to different relationships. …342.Upon balancing and considering all of the circumstances of the relationship canvassed in these reasons, I find that the [appellant] has not established on the balance of probabilities that the parties’ relationship was a de facto relationship. 343.I am satisfied that the composite picture of the parties’ relationship does not support that the [appellant] and the respondent were ever in relationship as a couple living together on a genuine domestic basis. I am satisfied that their relationship of 10 years and three months was always “something less than a de facto relationship”. (Emphasis added)THE APPEAL

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In relation to that form of inferred appealable error, the High Court later said this in Norbis v Norbis (1986) 161 CLR 513 at 539–540:It is, of course, not enough for [an appellant] to establish that [the appeal court] might, or would, have made a different order [from the primary judge]. … It is only where the [primary judge’s] decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong that an [appeal court] is entitled to interfere.(Emphasis added) Once accepted that this ground relies upon legal principles relating exclusively to appeals which lie from discretionary judgments, the defect in the ground becomes patent. The appealed judgment was not a discretionary judgment. Rather, it was an evaluative factual judgment (Colburn & Cleese (2022) FLC 94-105 at [32]; Lennon & Sanil (2020) FLC 93-962 at [8]). The question of whether a de facto relationship ever existed between the parties is capable of only one correct answer and the choice is binary: either yes or no. Discretionary judgments are different because the law admits of more than one correct answer within a tolerable range (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 at [16] and [26]). This being an evaluative factual judgment, the appeal from it is governed by the “correctness” standard rather than by House principles (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore at [15]–[17] and [22]–[26]). Since the House principles have no application, no appealable error can be implied when no other form of frank legal or factual error can be identified. The appellant accepted that was so during oral argument and conceded this ground must therefore be dismissed.DISPOSITION The appeal is dismissed. In the event of the appeal’s dismissal, the respondent sought an order that the appellant pay his party/party costs of and incidental to the appeal, which he assessed in the sum of $30,039.19, on the basis that the appeal was wholly unsuccessful. The appellant resisted the order, but without sufficient reason. Undoubtedly, her financial circumstances are much less fortunate than those of the respondent, but she somehow managed to acquire $30,000 to pay as security for the respondent’s costs for the appeal and she then willingly incurred another $90,000 in legal costs to prosecute the appeal. Unsurprisingly then, she did not challenge the quantum of the respondent’s assessed costs when they were less than one-third of her own. On 8 July 2024, the appeal registrar ordered the appellant to pay the respondent $30,000 by way of security for his costs of the appeal. The respondent’s party/party costs are rounded off at $30,000 and the costs order in his favour will be satisfied by him retaining the sum he has already received.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.