Cizek & Mihov - [2024] FedCFamC2F 584

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cizek & Mihov [2024] FedCFamC2F 584

File number(s): MLC 13083 of 2023

Judgment of: JUDGE BOYMAL

Date of judgment: 10 May 2024

Catchwords: FAMILY LAW – Threshold hearing – whether the parties were in a de facto relationship – declaration made that the parties were never in a de facto relationship

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AA and 90RD

Cases cited:
Clarence & Crisp [2016] FamCAFC 157

Colburn & Cleese (2022) FLC 94-105

Denys & Kellett [2022] FedCFamC1A 223

Fairbairn v Radecki [2022] HCA 18

Fox v Percy (2003) 214 CLR 118

Hayes v Marquis [2008] NSWCA 10

Jonah & White [2012] FamCAFC 200

Locke & Norton [2014] FamCA 811

Shelby & Rylan [2022] FedCFamC1A 143

Shelby & Rylan [2022] FedCFamC1F 281

Sinclair & Whittaker [2013] FamCAFC 129

Division: Division 2 Family Law

Number of paragraphs: 344

Date of hearing: 25, 26, 27 and 28 March 2024 and 15 April 2024

Place: Melbourne

Counsel for the Applicant: Ms Fisken

Solicitor for the Applicant: Glezer Lanteri And Associates

Counsel for the Respondent: Mr Wilson

Solicitor for the Respondent: Kennedy Partners
ORDERS

MLC 13083 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CIZEK

Applicant

AND:
MR MIHOV

Respondent

ORDER MADE BY:

JUDGE BOYMAL

DATE OF ORDER:

10 MAY 2024

THE COURT ORDERS THAT:
1.Pursuant to section 90RD of the Family Law Act 1975 (Cth) it is declared that a de facto relationship never existed between Ms Cizek (the applicant) and Mr Mihov (the respondent).
2.The applicant’s application filed on 9 November 2023 is dismissed.

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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BOYMAL

Ms Cizek, the applicant, commenced proceedings on 9 November 2023 seeking a property adjustment between her and Mr Mihov, the respondent, predicated on the basis that she was in a de facto relationship with the respondent. The applicant also sought a declaration pursuant to section 90RD of the Family Law Act 1975 (Cth) (the Act) that she and the respondent were in a de facto relationship for the periods of 2011 until 23 July 2013 and from July 2014 until 27 July 2023.
The respondent in his response filed on 1 December 2023 sought that the applicant’s application be dismissed and a declaration that a de facto relationship never existed between him and the applicant.
The disputed threshold issue, being the existence of the parties’ alleged de facto relationship, was separately listed for hearing to determine whether or not the Court has jurisdiction to make orders adjusting property interests.
For the reasons which follow, a declaration is made that a de facto relationship never existed between Ms Cizek and Mr Mihov.
THE PARTIES
The applicant
The applicant is 47 years of age. At the time of the hearing she was unemployed.
The applicant has three children. They all live with her. Ms D, 24 years of age, and Mr C, 22 years of age, are children of her relationship with a gentleman not referred to in any of the evidence. Ms E, 18 years of age, is the daughter of her marriage with her late husband, Mr F. Mr F passed away in 2011.
Mr F and the applicant were once a wealthy couple. There was an offer to purchase their business for some $15,000,000.00 which Mr F rejected as he was of the view the business was worth $30,000,000.00. They lived in luxury rental accommodation in Suburb G, the children attended expensive private schools, they went on several extravagant overseas holidays and generally enjoyed an opulent lifestyle.
Mr F’s health declined as he suffered the increasing impact of a serious illness in the five years leading up to his death. Consequently their business deteriorated substantially. Mr F used about $300,000.00 of investor funds to pay for his and the applicant’s lifestyle. Legal proceedings ensued. Mr F and the applicant were declared bankrupt shortly prior to Mr F’s death. The applicant remained an undischarged bankrupt until about May 2015.
The applicant sought interim spousal maintenance orders in her initiating application. She sought that the respondent reinstate her access to his H Bank credit card and NAB Visa credit cards, that he pay her a lump sum of $30,000.00 and $14,220.00 per week. She also sought periodic step-parent maintenance for Ms E in the sum of $3,565.00 per week. These interim matters were not dealt with as the preliminary issue of whether the parties were in a de facto relationship was in dispute.
The respondent
The respondent is 67 years of age. He is semi-retired but engaged in part-time self-employment as a company director and consultant principally through the entities J Company as trustee for the J Company Unit Trust and K Pty Ltd as trustee for the Mihov Investment Trust. The respondent is the sole director of and holds all the issued shares in the J Company and Mihov Investment.
The respondent has five children. Ms L, 35 years of age, is the daughter of his first marriage with Ms M. Mr N, 22 years of age, Mr O and Ms P, 20 year old twins, and Mr Q, 18 years of age, are the children of his second marriage with Ms R. Ms L is married and lives with her partner in City S. They have two children, X, three years of age and Y, four months of age. Mr N, Mr O, Ms P and Mr Q now live with the respondent.
Whilst the Court was not told of the respondent’s overall financial circumstances, it is not in dispute that he is a man of some wealth. In 2020 the respondent anticipated selling his interest in Z Company for $80,000,000.00. However, the sale price that eventuated was $20,000,000.00.
The respondent has an amicable relationship with both of his former wives. He still pays Ms R $2,500.00 per week even though he is no longer under any legal obligation to do so.[1] He also still pays the applicant’s rent and provides financial support to her. The tenor of the respondent’s evidence indicated he still has warm feelings towards the applicant and is saddened by the applicant not being willing to engage with him in the type of relationship he desired.
[1] Respondent’s affidavit filed 15 March 2024 at [7]
The relationship background
The parties met in or around 2004 when their respective children attended AA Kindergarten together. At this time the applicant was married to Mr F and the respondent was married to Ms R.
The applicant’s son Mr C and the respondent’s son Mr N are the same age, as are the applicant’s daughter Ms E and the respondent’s son Mr Q. Accordingly, the two couples were in the same friendship group of school parents who socialised together.
The respondent notes that as Mr F’s health declined their mutual friendship group sought to assist the applicant and her children. The respondent states he would have a coffee or a glass of wine with the applicant about once each week. The development of this friendship into an intimate relationship is discussed below.
THE LEGAL PRINCIPLES
The Court is guided by the statutory test set out in section 4AA of the Act when determining whether a de facto relationship exists.
The parties satisfy section 4AA(1)(a) and (b). They are not legally married to each other and are not related by family.
The applicant has the onus of establishing on the balance of probabilities whether pursuant to section 4AA(1)(c) the parties “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis”. Section 4AA(1)(c) is the “touchstone”[2] and provides the “seminal question”[3] in determining whether the parties were in a de facto relationship.
[2] Jonah & White [2012] FamCAFC 200 at [32].
[3] Jonah & White [2012] FamCAFC 200 at [33].
In Fairbairn v Radecki [2022] HCA 18 at [39] the High Court said that “living together” should be construed to mean sharing life as a couple.
Section 4AA(2) sets out a non-exhaustive list of circumstances to consider when working out if persons have a relationship as a couple.
No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the parties were in a de facto relationship.[4] None of the matters referred to in section 4AA(2) has precedence over any other, nor must all necessarily be found before a finding of a de facto relationship is made.[5] The Court is entitled to have regard to such matters, and attach such weight to any matter, as may seem appropriate in the circumstances.[6]
[4] Family Law Act 1975 (Cth) ss 4AA(3).
[5] Clarence & Crisp [2016] FamCAFC 157 at [33].
[6] Family Law Act 1975 (Cth) ss 4AA(4).
Regard must be had to all of the circumstances of the relationship, whether or not they are specified by subsection 4AA(2).[7] The Court is required to look at the “composite picture” produced by the synthesis of the evidence and statutory considerations prescribed in section 4AA.[8]
[7] Sinclair & Whittaker (2013) FamCAFC 129 at [51].
[8] Colburn & Cleese (2022) FLC 94-105 at [79].
In Sinclair & Whittaker [2013] FamCAFC 129 the Full Court of the Family Court at [55] cited with approval Fitzgerald J’s statement in Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
THE EVIDENCE
The applicant filed an outline of case on 22 March 2024. She relies on:
(a)her initiating application filed 9 November 2023;
(b)her affidavits filed 8 March 2024 and 20 March 2024;
(c)the affidavit of Mr C, her adult son, filed 20 March 2024; and
(d)the affidavit of Ms BB, her friend, filed 12 March 2024.
Counsel for the applicant tendered six exhibits.
The respondent filed an outline of case on 21 March 2024. He relies on:
(a)his response to initiating application filed 1 December 2023;
(b)his affidavit filed 15 March 2024;
(c)the affidavit of Ms L, his adult daughter, filed 15 March 2024;
(d)the affidavit of Mr N, his adult son, filed 15 March 2024;
(e)the affidavit of Mr CC, his friend, filed 15 March 2024; and
(f)the affidavit of Mr DD, his accountant, filed 15 March 2024.
Counsel for the respondent tendered eight exhibits.
Exhibit A6 and Exhibit R8 are Counsels’ comprehensive written closing submissions which were addressed during oral closing submissions.
It is noted that Exhibit A1 is comprised of documents originally marked Exhibit A4 through to Exhibit A11 and Exhibit A13, each of which were each extracted from a tender bundle of 781 pages provided to the Court and each party by Counsel for the applicant. These exhibits were subsequently consolidated into Exhibit A1 at the time of closing submissions.
The Court is not required to refer to every piece of evidence relied upon by the parties, traverse every argument that is advanced or make findings in relation to all of the facts that are put in issue by them. I have read all the documents relied upon and taken all of the evidence and submissions into account. Pursuant to section 140 of the Evidence Act 1995 (Cth) findings are made on the balance of probabilities and have regard to the nature of the subject matter of the proceedings and the gravity of the matters alleged.[9] My observations of the demeanour of the parties and the witnesses have assisted my assessment of the evidence.
[9] Evidence Act 1995 (Cth) s 140.
The parties’ evidence
It was apparent that when giving their evidence the parties were mindful not to denigrate the other.
I agree with Counsel for the applicant that the respondent was more loquacious than the applicant when giving evidence. However, I do not agree with her contention that his expanded answers were “attempts to explain matters that he well understood were harmful to his case”,[10] or that “his evidence had a tendency to mislead”.[11]
[10] Exhibit A6 at [29].
[11] Exhibit A6 at [31].
The respondent is an articulate and successful businessman. The manner in which he gave his evidence was commensurate with a man of his standing. He was softly spoken, and whilst consistent in his evidence was nonetheless willing to make appropriate concessions.
The applicant, on the other hand, was guarded and prevaricated when giving her evidence. There were often long pauses between the questions and her answers, which appeared she utilised to give her time to tailor her evidence to promote her case.
For the following reasons, in addition to those observations, where the evidence of the applicant and respondent is in conflict and a finding cannot be made on the available contemporaneous material, objectively established facts, and the apparent logic of events, I prefer the evidence of the respondent.[12]
[12] Fox v Percy (2003) 214 CLR 118 at [31] per Gleeson CJ, Gummow & Kirby JJ.
Counsel for the respondent referred to three matters, being:
(a)the applicant’s evidence in relation to the breakdown of the relationship between the parties in 2013, specifically the date the photograph contained in Exhibit R2 was taken;
(b)the applicant’s failure to notify Centrelink that she was in a de facto relationship and her continued receipt of benefits throughout the alleged de facto relationship; and
(c)the applicant’s assertion through her lawyer that the photograph contained in Exhibit 1I was taken in May 2015, whilst the respondent was out of the country, when in fact it was taken in March 2015.
I accept that in this matter most errors by the parties in their evidence in relation to dates and their inability to recall occasions were not intentional but rather caused by the passage of time and the fallibility of memory.
I accept that the error in date of the photograph being taken contained in Exhibit 1L was not intentional and note that Counsel for the applicant corrected the error in cross-examination the following day.
However, I consider that the applicant’s evidence in respect of the date the photograph in Exhibit R2 was taken, being a man sleeping on the applicant’s couch, is an example of the applicant tailoring the evidence to suit her case. This supports a reason to treat the reliability of the applicant’s evidence with caution.
The applicant asserted that the photograph was taken in April 2014, a date during the period of the parties’ first separation. However, it was established through cross-examination of the applicant that the photograph was clearly taken in March 2013, a time when the applicant asserts the parties’ were in a de facto relationship, and on both parties evidence they were in a relationship of some sort. The applicant told the Court that the man in the photograph and she were seeing each other in April 2014 but that they were not seeing each other in March 2013. I prefer the evidence of the respondent that in March 2013 the applicant admitted she was romantically involved with another man and that this was a root cause of the relationship hiatus which occurred in 2013.
When cross-examined the applicant said she meant that the photograph appeared on social media in April 2014. I am satisfied that her “motivation” to assert the date of April 2014 as the date the photograph was taken, as Counsel for the respondent submits, because “she wanted to reject any submission or any evidence that the respondent put forward about her infidelity in March 2013”.[13]
[13] Transcript dated 15 April 2024, pg.273.
During the relationship, and until at least after her 2020/2021 financial year taxation return was lodged and completed[14], the applicant was in receipt of the Family Tax Benefit, a means tested government benefit. The applicant told the Court that she received these payments without ever informing Centrelink she was in a de facto relationship.
[14] Transcript dated 25 March 2023 at [13].
Whilst statements to government authorities apparently inconsistent with a party’s case may “complicate the resolution of the issue of the nature of the relationship” between two people, such statements are not determinative, but are to be taken into account as part of the circumstances comprising the whole picture of a particular relationship.[15]
[15] Sinclair & Whittaker [2013] FamCAFC 129 where at [66] the Full Court cited with approval the comments of McColl J at [99] in Hayes v Marquis [2008] NSWCA 10.
In this case, it is the omission of a statement by the applicant to a government authority that I take into account. I place significant weight on that omission. The applicant is not an unintelligent woman. It beggars belief that if the applicant thought she was in a de facto relationship she would choose to continue receiving government benefits, which even Counsel for the applicant describes as “modest”,[16] given the magnitude of the financial support the respondent provided to her.
[16] Exhibit A6 at [216].
Counsel for the respondent submits the applicant “cannot have it both ways. If she thought she was in a de facto relationship, she misrepresented her relationship status with Centrelink. If she was truthful with Centrelink she is not being so with the Court”.[17]
[17] Exhibit R8 at [12].
If the former is true, the applicant lied in order to obtain a financial benefit. If the latter is true, it is a factor indicative of the applicant’s own belief that her relationship with the respondent was not a de facto relationship and is now disingenuously endeavouring to persuade the Court otherwise.
Furthermore, the applicant did not tell the Australian Taxation Department that she was in a de facto relationship. She sought to lay responsibility for that omission on Mr DD.
It is true that Mr DD did attend to the applicant’s taxation returns. However, it was not until post-August 2019 that he commenced doing so for the purpose of a notional distribution to be made to her through the J Company Unit Trust in the 2020/2021 financial year. I am satisfied that it was not until August 2019 that the respondent became aware that the applicant was still receiving the Family Tax Benefit.
Exhibit A2 includes a text message exchange between the applicant and respondent on 6 August 2019, wherein the respondent queries whether the applicant is happy for his accountant, that is Mr DD, to take over the applicant’s taxes. The applicant replies:[18]
Yes, there’s still family tax benefit from the bankruptcy so they saw I had income that gets paid. About $300 a fortnight.
[18] Exhibit A2, pg.4.

The applicant also told the Court that her continued receipt of the Family Tax Benefit was “something that rolled over from when [Mr F] passed away, and I believed it was something that continued on”.[19] The applicant accepted that receiving the Family Tax Benefit is dependent on one’s means and living circumstances.
[19] Transcript dated 25 March 2024, pgs.12 to 13.
However, despite a vast improvement in the applicant’s means and living circumstances during her relationship with the respondent, the applicant did not consider it desirable or necessary to advise Centrelink and thus cease receiving the means tested government benefit.
I do not accept that the applicant lied repeatedly by omission to Centrelink and the Australian Taxation Office (the ATO) about her relationship status. I consider that it is much more likely than not that there were no omissions because she did not regard herself as being in a de facto relationship with the respondent. If that is not the case, I consider that the applicant’s intentional failure over a lengthy period of time to advise the government authorities that she was in a de facto relationship provides a further reason to approach the truthfulness of her evidence with caution. The applicant’s explanations of her failure to advise them are further examples of her tailoring her evidence to promote her case by reconstructing past events through a prism intended to convey the existence of a de facto relationship.
The parties’ children
Mr C, Ms L and Mr N all gave evidence. They were responsive and polite witnesses who did not embellish their evidence in order to emphasise and support the case of their respective parent. All three witnesses answered questions just as they saw and perceived things. It was refreshing hearing the manner in which they gave their evidence.
The parties’ friends
Mr CC, longtime friend of the respondent, was not required for cross-examination. Accordingly, Mr CC’s evidence in his affidavit was challenged only through submissions of Counsel for the applicant. Mr CC was not given the opportunity to respond to Counsel’s criticisms of his evidence.
Ms BB gave evidence. Ms BB is a close personal friend of the applicant of some 19 years.
The evidence of Mr CC and Ms BB aligns with the interests of their respective friend.
Mr DD
Mr DD is not a personal friend of either party. He is the respondent’s long standing personal and business accountant.
THE CIRCUMSTANCES OF THIS RELATIONSHIP
Section 4AA(2)(a) - the duration of the relationship
The duration of the relationship is relatively uncontroversial. On the applicant’s evidence it is some 11 years and on the respondent’s evidence some 10 years in duration.
The applicant asserts that the relationship commenced in or about mid-2011,[20] whilst the respondent states that the parties only begun openly dating in about December 2011 or January 2012 following his physical separation from Ms R in October 2011.[21]
[20] Applicant’s affidavit filed 8 March 2024 at [9].
[21] Respondent’s affidavit filed 15 March 2024 at [25].
Although, the respondent notes the parties were first intimately involved at some point in 2010, and accepted the proposition put forth by Counsel for the applicant that by April 2011 he and the applicant were “freely expressing to one another that you love each other” as “romantic companions”.[22]
[22] Transcript dated 26 March 2024, pg.34.
The applicant states the parties separated from 23 July 2013 until July 2014.[23] In this regard, the respondent notes that from December 2012 he suspected the applicant was romantically involved with other people, and that in March 2013 the applicant admitted she was romantically involved with another man, being the man pictured in Exhibit R2. Accordingly, by the end of June 2013 the parties had stopped seeing each other altogether.[24]
[23] Applicant’s affidavit filed 8 March 2024 at [9].
[24] Respondent’s affidavit filed 15 March 2024 at [28].
The respondent asserts that the parties reconciled in or around August 2014 when they arranged to take their respective children to Town EE at the same time, although rejects the assertion the two families travelled as a unit.[25]
[25] Respondent’s affidavit filed 15 March 2024 at [30].
Subsequently, the applicant asserts the relationship endured until 27 July 2023.[26] It is prescient to note that the date the applicant considers the relationship to have concluded is the same date as when the respondent removed her access to his H Bank credit card.
[26] Applicant’s affidavit filed 8 March 2024 at [9].
The respondent asserts that the relationship declined following the onset of the Covid-19 pandemic. The respondent notes that he emailed the applicant on 4 March 2023 declaring “we are done”. He, however, acknowledges the parties continued to communicate and see each other sporadically and that he continued to financially support her.[27] Ultimately, the respondent states he had not seen the applicant prior to the final hearing since 9 July 2023.[28] This is a date during Victoria’s sports season. I refer to paragraphs [218] to [219].
[27] Respondent’s affidavit filed 15 March 2024 at [78].
[28] Respondent’s affidavit filed 15 March 2024 at [80].
The respondent’s assertion that the relationship declined following the onset of Covid-19 is persuasive. The parties did not apply for intimate partner exemptions which would allow them to travel between each other’s houses during Covid-19 lockdowns. Furthermore, the applicant spent much of lockdown in Town EE whilst the respondent remained in Melbourne. Finally, as is discussed below, the majority of time the parties spent together was travelling. Travel was largely not feasible during the Covid-19 pandemic and the respondent sold his business interest in Z Company during this period. Accordingly, I infer that his requirement to travel for business purposes dramatically decreased after the sale of his interest in Z Company.
The respondent’s position in regard to the decline of the relationship following the onset of Covid-19 is not incompatible with the applicant’s contention that whilst the parties “now describe the relationship in different terms, it is common ground that the relationship had evolved from a close friendship to a romantic committed relationship, albeit on [the respondent’s] case, he yearned for a more committed relationship”.[29]
[29] Applicant’s outline of case filed 22 March 2024 at [30.1].
I consider the assertion of each party in the light of the following in Denys & Kellett [2022] FedCFamC1A 223 at [38]:
While it might have been open on the evidence for the primary judge, having weighed all of the factors in s 4AA(2), to ultimately conclude that the relationship between the parties was something less than a de facto relationship, we consider that it is unnecessary and erroneous to attempt to define the different categories or labels that might be put on any relationship that does not meet the statutory test prescribed by s 4AA(1).
Accordingly, notwithstanding the varying manners in which each of the parties seek to define the relationship at different stages I consider there was a relationship between the parties from approximately December 2011 until July 2023, with a hiatus of some 14 months from late June 2013 until late August 2014, being a non-continuous period of some 10 years and three months.
Section 4AA(2)(b) - the nature and extent of their common residence
Melbourne Residence
It is accepted that the parties maintained separate residences in Melbourne for the duration of their relationship, however, there is some dispute as to why they never lived together.
The applicant contends that as the parties collectively had seven children to care for “they agreed” it was not practical for them to move into a shared residence in Melbourne.[30] The respondent disputes this stating that until approximately 2020 his four youngest children lived with their mother and spent the weekends with him. It is the respondent’s evidence that had the applicant been receptive to sharing a residence he would have made arrangements that suited the parties and their respective children.[31]
[30] Applicant’s affidavit filed 8 March 2024 at [10].
[31] Respondent’s affidavit filed 15 March 2024 at [90].
The applicant, however, asserts that the respondent’s children lived in a week about arrangement between their mother and the father. Counsel for the applicant submits that I should prefer the evidence of the applicant in this regard and refers the Court to the information contained in Exhibit R7 being extracts from the respondent’s diary for various months in the years 2015, 2016, 2017, 2018 and 2020.
Having analysed Exhibit R7 I am satisfied that the information within it does not unequivocally support either parties’ assertion. I am satisfied that Exhibit R7 supports that the respondent and Ms R had very flexible arrangements in relation to the care of their children. During school terms sometimes the respondent’s children stayed with the respondent and sometimes they only spent weekends with him. There was no fixed pattern.
Counsel for the respondent put to the applicant that the respondent was willing to make arrangements to accommodate the parties and their children in a single residence. The applicant disagreed with the proposition and stated that the parties agreed it would not be practical and that the respondent had “voiced it to other people as well that it was not practical with the number of children”. Counsel for the respondent, quite correctly, noted that this claim was not present anywhere else in the applicant’s material.[32]
[32] Transcript dated 25 March 2024, pg.40.
I am of the view the respondent would have made arrangements that suited the parties and their respective children in whatever care arrangements he had with his children. As Counsel for the respondent suggested to the applicant, the respondent had the wherewithal and means to obtain accommodation to house the parties and all the children. The applicant opined that “there’s not that many eight bedroom homes”.[33] However, Counsel for the respondent again correctly identified that the parties “didn’t even get to the point of looking at whether or not there were homes because your attitude was ‘No. I don’t want to do it’…”.[34]
[33] Transcript dated 25 March 2024, pg.41.
[34] Transcript dated 25 March 2024, pg.41.
The respondent asserts that he stayed overnight at the applicant’s home less than 10 times each year throughout the relationship and that the applicant never stayed overnight at his home.[35] The applicant concedes that she never stayed overnight at the respondent’s house, and says it was because she “had my children all the time”.[36] However, the applicant did cavil with the proposition that the respondent stayed at her home less than 10 times each year. In this respect, the applicant did not speculate regarding the number of times the respondent did stay rather stating “I don’t agree with less than 10 times”,[37] and “I didn’t diarise every time he stayed at my house”.[38]
[35] Respondent’s affidavit filed 15 March 2024 at [34].
[36] Transcript dated 25 March 2024, pg.18.
[37] Transcript dated 25 March 2024, pg.22.
[38] Transcript dated 25 March 2024, pg.18.
The respondent further noted, and the applicant conceded,[39] that the respondent did not have a key to access the applicant’s house and kept no personal belongings, not even a toothbrush, there.[40]
[39] Transcript dated 25 March 2024, pg.21.
[40] Respondent’s affidavit filed 15 March 2024 at [34].
It is the applicant’s case that the parties competing parenting arrangements made it difficult for them to spend overnight time together when they were both in Melbourne.[41]
[41] Applicant’s affidavit filed 8 March 2024 at [12].
However, Counsel for the respondent aptly noted that the applicant had little difficulty organising for her mother, or other third parties, to care for her children when she wished to travel overseas with the respondent but that no such efforts were ever made in order to enable her to spend overnight time with the respondent in Melbourne. The exchange, which I consider somewhat indicative of the nature of the relationship between the parties, went as follows:
Counsel for the respondent: When you travelled overseas with my client, just the two of you, you had no difficulty getting your mother to look after your children for those trips, did you?
Applicant: That’s to travel, as opposed to be a kilometre away.
Counsel for the respondent: Yes. So you never thought to ask your mum, “Would you look after the kids while I go and stay with [Mr Mihov] for a couple of nights”?
Applicant: I thought it was – we thought it was always easier that he came to stay with me when he didn’t have his children.
Regardless of the various disputes between the parties as to the reason why they did not live in a shared residence or spend more overnight time together whilst in Melbourne, it is clear that the parties did not spend any significant overnight time together let alone live in a common residence even when they were both present in Melbourne.
Travel
It is the applicant’s case that the parties travelled together frequently as a couple, for both leisure and the respondent’s business, and at times with some or all of their respective children.
Exhibit R3 is the respondent’s aide memoir which includes separate breakdowns of leisure trips and business trips undertaken by the parties either together or separately.
The applicant stated prior to the Covid-19 pandemic she would typically accompany the respondent on three business trips per year.[42] The respondent stated that he would invite the applicant on business trips if there was an associated invitation to a corporate event which she would like to attend, for example, a function in London which the parties attended together on three occasions.
[42] Applicant’s affidavit filed 8 March 2024 at [11.2].
The breakdown of business trips taken by the respondent indicates that during the relationship, more specifically between April 2013, when the first such trip was undertaken during the period of the relationship, and the onset of Covid-19 in March 2020, the respondent took 63 business trips for a cumulative total of 492 days.
Exhibit R3, as amended to correct two errors identified during the cross-examination of the respondent,[43] identifies that the applicant accompanied the respondent on 10 business trips for a cumulative total of approximately 90 days during the aforementioned period. The applicant therefore accompanied the respondent on less than one fifth (18.3 per cent) of business trips he undertook in seven years. This is approximately 13 overnights per year over the relevant seven year period.
[43] Transcript dated 27 March 2024, pg.120.
Exhibit R6 is the amended aide memoire providing a breakdown of leisure holidays, both domestic and international, updated with further trips which were identified as missing from Exhibit R3 by the applicant.[44] Exhibit R6 identifies that throughout the relationship the applicant spent some 108 days on holiday with the respondent and some combination of their respective children (some 10 overnights per year on average throughout the course of the relationship), and 177 days on holiday without the respondent with some or none of her children. The applicant went on leisure holidays on 285 days during the relationship of which almost two thirds (62.11 per cent) were spent without the respondent. It is noted that the respondent paid for all of these holidays, regardless of his attendance.
[44] Transcript dated 28 March 2024, pg.144.
Accepting that the parties spent somewhere in the vicinity of 10 overnights a year together when in Melbourne, on average each year they spent more overnight time together whilst overseas.
Town EE
The applicant contends that whilst the parties did not share a common residence in Melbourne, they shared a common residence each sports season at Town EE from 2015 to 2022.[45] Furthermore, the applicant contends that at Town EE the parties and their respective children formed a “blended family”.[46]
[45] Applicant’s written submissions at [205].
[46] Applicant’s affidavit filed 20 March 2024 at [4(r)].
Counsel for the applicant correctly highlighted that Exhibit R3 and R6 which seek to highlight the time the parties spent travelling together and separately do not contemplate time spent at Town EE.[47]
[47] Transcript dated 28 March 2024, pg.146.
The parties first travelled to Town EE at the same time at the end of August 2014, at or around the time the parties had reconciled from their relationship hiatus. The parties did not stay together on this initial trip,[48] however the respondent acknowledged in cross-examination that the families did spend time together on each day of this trip.
[48] Transcript dated 27 March 2024, pg.75.
Subsequently in 2015 the parties rented a property together at Town EE for the sports season (the Property FF).[49] Property FF was a three bedroom property that the parties rented from mid to late 2015.[50] The respondent acknowledged in cross-examination that the parties spent time together at Property FF during part of the term two school holidays in 2015 and “most weekends” during the rental period, some three months.[51]
[49] Transcript dated 27 March 2024, pg.90.
[50] Transcript dated 27 March 2024, pg.90.
[51] Transcript dated 27 March 2024, pgs.104 to 105.
In June 2016 the purchase of the property located at GG Street, Town EE, Victoria settled (the Town EE property).[52] The applicant alleges that from thereon the parties and their respective children stayed together for approximately five weeks each year at the Town EE property during the sports season.
[52] Transcript dated 27 March 2024, pg.130.
The respondent denies this stating that whilst the respective families often stayed at the Town EE property they came and went at different times without any joint planning. Moreover the respondent contends:[53]
[the applicant’s] stays at the property often coincided with my children's use of it, but I had deliberately chosen it because it could accommodate both families. I let [the applicant] treat [Town EE] as her own property; she had her own key, decorated it with some furnishings that she liked (which I paid for), and did not ask or tell me when she wanted to stay there.
[53] Respondent’s affidavit filed 15 March 2024 at [47].
The applicant confirmed under cross-examination that from the time of the purchase onwards she and her children would attend Town EE each weekend during the sports season and for the term two school holidays each year.[54] The applicant further contended that the respondent and his children would attend at the same times because “they had the same commitment to the sports training programs too”.[55]
[54] Transcript dated 25 March 2024, pgs.16 to 17.
[55] Transcript dated 25 March 2024, pg.16.
The respondent’s evidence in this regard is that the parties’ children were at very different levels as sports people, accordingly their commitments were all different, and “they didn’t do it together”.[56] Furthermore, when it was put to the respondent by Counsel for the applicant that the arrangement was that he would go up in the sports season, the respondent noted:
I mean, loosely around what you would – or around what you described. It got less formal as the children got older and, you know, one would have to miss it because there was a really great thing on in the city and all that sort of stuff.
[56] Transcript dated 27 March 2024, pg.90.
Mr C initially stated that both families spent approximately five weeks at the Town EE property each year.[57] However, it was put to Mr C that whilst the respondent and his children would attend the Town EE property they did not attend as much as the applicant and her children, including himself. Mr C accepted this and confirmed the respondent and his children utilised the Town EE property less frequently and “definitely not as much as us [the applicant and her children]”.[58]
[57] Affidavit of Mr C filed 8 March 2024 at [6].
[58] Transcript dated 25 March 2024, pg.68.

I agree with the submission of Counsel for the respondent that the parties overlapping use of the Town EE property at times falls short of constituting a shared residence, especially considering the lack of evidence of joint intention or planning to utilise the property or holiday as a blended family.
Covid-19
During the Covid-19 pandemic whilst restrictions were in place, the respondent raised with the applicant the notion of applying for an intimate partner exemption. The applicant, however, declined. Accordingly the parties did not see each other physically during lockdowns.[59]
[59] Respondent’s affidavit filed 15 March 2024 at [54].
This is uncontroversial.[60] However, the applicant posits that she did not seek to apply for an intimate partner exemption because “for a large part of that lockdown, we were at [Town EE]…when we were not at [Town EE], I had my mother with me and that was something that I was very conscious of trying to limit our exposure”.[61]
[60] Applicant’s affidavit filed 20 March 2024 at [4(u)]; Transcript dated 25 March 2024, pg.45.
[61] Transcript dated 25 March 2024, pg.44.
Whilst the applicant resided at the Town EE property for large chunks of the Covid-19 lockdown periods, the respondent stayed in Melbourne to care for and support his twins who were in Year 12. The respondent was also dealing remotely with protracted legal proceedings conducted in the United Kingdom arising out of the sale of his interest in Z Company.
HH Street Lease
The continued decline in the parties relationship post Covid-19 can be seen in the limited amount of time the respondent spent at the HH Street property.
It is the respondent’s evidence that between October 2022 when the applicant moved into the HH Street property, and July 2023 when the relationship between the parties ceased, the respondent stayed overnight at the HH Street property on perhaps four occasions. The applicant conceded “that might possibly be correct”.
Conclusion
It is not contested that the parties maintained separate primary residences in Melbourne throughout the duration of the relationship. Although neither party explicitly contended that the parties’ joint travel constituted a shared residence, the applicant does appear to place stock on the fact “they spent considerable time together on holiday, and at the Town EE property”.[62]
[62] Transcript dated 25 March 2024, pg.4.
In this respect I refer to the findings of the primary judge in Shelby & Rylan [2022] FedCFamC1F 281 at [156]:
Further, the quantum of travel undertaken by two people does not, of itself, indicate the existence of a de facto relationship – particularly where those two people were engaged in a business relationship and particularly where the nature of the business with which they were associated was such that extensive overseas travel was required.
Ground 3 of the appeal raised in Shelby & Rylan [2022] FedCFamC1A 143 at [22] sought to impugn the primary judge’s decision on the basis that it was concluded there was no de facto relationship between the parties despite uncontroverted evidence regarding the quantum of travel undertaken by two people. The Full Court held “this is only one factor to be taken into account by the primary judge. Her Honour was entitled to make the findings that she did”.
It is noted that the present case may be somewhat distinguished from Shelby & Rylan in that the applicant here was not engaged in the respondent’s business directly but rather travelled, from time to time, with the respondent on his business trips. In real terms she had a holiday when she accompanied the respondent on his business trips. I am of the same view as the primary judge in Shelby & Rylan that the quantum of travel undertaken by the parties, whether or not children accompanied the parties, does not of itself support the existence of a de facto relationship.
In any event, as identified above, the parties undertook more travel separately than they did together.
I find that the parties did not share a common residence at any point during the relationship, this is not determinative of the seminal question but does form part of the composite picture.
I consider that the respondent had the wherewithal and means for a common residence to be obtained, and the motivation and desire to share a common residence with the applicant even for part of the week.[63] Accordingly, I find that the applicant’s decision not to engage with the respondent’s desire for a shared residence favours the respondent’s case.
[63] Respondent’s affidavit filed 15 March 2024 at [62]
Section 4AA(2)(c) - whether a sexual relationship exists
The parties were in a sexual relationship. The applicant states that the parties were engaged in a sexual relationship at all times throughout the duration of the relationship.[64] The respondent accepts this, however, he notes the sexual contact between the parties was “irregular and infrequent”.[65]
[64] Applicant’s affidavit filed 8 March 2024 at [13].
[65] Respondent’s affidavit filed 15 March 2024 at [93].
It was posited by Counsel for the applicant that the sexual relationship between the parties was not as frequent as the respondent would have liked but it was happening. This proposition was accepted by the respondent.[66]
[66] Transcript dated 27 March 2024, pg.65.
Counsel for the respondent submits that it is open to the Court to find that the applicant did not consider the relationship between the parties to be in a monogamous relationship. In this respect the Court was directed to give regard to Exhibit R2, the circumstances surrounding the relationship hiatus in 2013/2014, and the unchallenged affidavit of Mr CC other than by way of submissions by Counsel for the applicant.
Pertinently Mr CC states:
[the respondent] told me he thought [the applicant] considered herself to be in an "open" relationship, and free to date someone else if she wanted to; he expressed a belief that [the applicant] would readily see someone else if the opportunity arose. This was consistent with my observations of [the applicant]. At several social functions, l noticed [the applicant] was often quite flirtatious with other men and she did not behave as someone in a committed, monogamous relationship.
Counsel for the applicant submits that I should consider Mr CC’s evidence with some caution. This plainly would include the weight to be attached to Mr CC’s observations in the preceding paragraph. Mr CC moved to Suburb JJ, as did his children, in 2013. Since then save for meet ups with the respondent he appears to have had limited opportunities to observe the parties together at social events. Notably the applicant did not accompany the respondent to any such meetups. However, even if his observations are limited to 2013 and the few occasions thereafter, he was not personally cross-examined. I place weight on his observations as they align with the view of the respondent that when he attended social functions with the applicant particularly when he accompanied her to her children’s school events that he “felt like a handbag”.[67]
[67] Transcript dated 27 March 2024, pg.105.
In furtherance of this, the evidence of the respondent is that in the lead up to the breakdown of the relationship in July 2023 he was again of the opinion that the applicant was romantically seeing other people.
I find that the parties were engaged in a sexual relationship for the duration of the relationship and that the applicant was engaged in other romantic relationships throughout the relationship, which may or may not have included sexual relations.
I acknowledge that the existence of a sexual relationship between the parties, or indeed between one of the parties and a third party, and the frequency of intimacy between the parties, whilst relevant is not determinative of the seminal question.
Section 4AA(2)(d) - the degree of financial dependence or interdependence and any arrangements for financial support between them
The parties did not intermingle their respective incomes, assets, or financial resources and did not operate a joint bank account or financially acquire property in joint names.
It is however uncontroversial that throughout the relationship the applicant was entirely financially dependent on the respondent, save for her receipt of government benefits.
Counsel for the applicant acknowledged that the respondent “provided significant financial support”,[68] and was “very generous – financially generous” to the applicant.[69]
[68] Applicant’s Outline of Case filed 22 March 2024 at [43].
[69] Transcript 25 March 2024, pg.5.
Counsel for the applicant posits that this financial support and the dependence it engendered is a particular feature of the alleged de facto relationship between the parties.
This contention is buttressed by the suggestion that during the parties’ relationship hiatus in 2013/2014 the respondent withdrew his financial support and again at the termination of the relationship in July 2023 the respondent withdrew his financial support of the applicant.[70] However, it is clear that whilst the respondent reduced his financial support of the applicant following the termination of the relationship in July 2023, he continues to financially support her.
[70] Transcript 25 March 2024, pg.5.
Conversely, it is the respondent’s position that his financial support of the applicant throughout the relationship was an ongoing attempt by him to procure or encourage a greater commitment from the applicant to the relationship. The respondent contends that he “always premised my financial assurances to [the applicant] on her giving me much greater commitment to our relationship, and to our situation resembling a marriage with a common domestic living arrangement”.[71]
[71] Respondent’s affidavit filed 15 March 2024 at [69].
The applicant denied the respondent’s contention.[72] Counsel for the applicant relies on the omission of such representations by the respondent in the text message exchanges between the parties and says that “none of these communications talk about it being conditional” in order to persuade the Court to accept the applicant’s denial in preference to the respondent’s contention.[73] However, I note the parties also had WhatsApp, email, telephone and in person communications, specifically I draw attention to:
(a)the emails contained in Exhibits A1-1A and R4 in which the parties correspond regarding the applicant’s employment bio;
(b)the emails contained in Exhibit A1-1C the parties exchanged emails regarding the applicant’s desire to undergo fertility testing;
(c)the oral evidence of Mr C was indicating the parties discussed the applicant’s offer of employment at B Company over the phone;[74] and
(d)the WhatsApp message exchange between the parties on 2 January 2021, extracted at paragraph [272] herein.
[72] Transcript 25 March 2024, pg.53
[73] Transcript 15 April 2024, pg.279
[74] Transcript dated 25 March 2024, pg.67.
Such evidence supports that the parties had important communications between them other than by text message. Accordingly, I place little weight on the applicant’s denial and Counsel for the applicant’s contention. I prefer the evidence of the respondent.
Considering the juxtaposed positions taken by the parties in respect of the financial dependence of the applicant on the respondent it is necessary to take a longitudinal view of the financial support provided by the respondent to the applicant before, during and after the relationship.
Pre and Early Relationship Support
The relationship between the parties was one characterised by the respondent’s support of the applicant, and some degree of dependence on the part of the applicant even prior to the period of the alleged de facto relationship.
The applicant was in a precarious financial situation prior to the relationship between the parties commencing. The applicant’s deceased husband, Mr F, was declared bankrupt shortly prior to his death in 2011. As a result of her joint holdings with Mr F the applicant was declared bankrupt in or around 2012.[75]
[75] Applicant’s affidavit filed 8 March 2024 at [7] and [8].
The respondent was the alternate executor of Mr F’s estate.[76] The respondent was also the alternate executor of the applicant’s estate. The applicant asserts that upon Mr F’s death the respondent:[77]
Became a friend and mentor to me. When [Mr F] passed away, I was 34 years of age with three young children. Our business affairs were disorganised after five years of [Mr F’s] suffering with a very serious illness. [The respondent] stepped in to assist me on business and personal affairs. He advised me about board meetings, engaging lawyers and generally looked after my and my children’s interests.
[76] Applicant’s affidavit filed 8 March 2024 at [8].
[77] Applicant’s affidavit filed 8 March 2024 at [14].
The respondent’s evidence is that he commenced providing financial support to the applicant in the context that he was “attracted to [the applicant], but also felt sorry for the predicament she was in”.[78] The respondent acknowledges providing the applicant advice in relation to her litigation at this time and other business related matters. However, he denies he represented her interests in relation to the estate issues and denies knowing the applicant had made him an alternate executor to her will.[79] I prefer the evidence of the respondent.
[78] Respondent’s affidavit filed 15 March 2024 at [56].
[79] Respondent’s affidavit filed 15 March 2024 at [94].
The respondent states that he began providing financial assistance to the applicant “in about early 2012” including legal costs of various proceedings, rent, school fees and other minor expenses such as tutoring.[80] During cross-examination Counsel for the applicant put to the respondent, and the respondent accepted, that by mid-2011 he was paying the applicant’s rent, and from 2012 onwards he paid for the applicant’s children’s private school fees.[81]
[80] Respondent’s affidavit filed15 March 2023 at [57].
[81] Transcript dated 26 March 2024, pg.35.
The Hiatus
In about June 2013 the respondent stopped paying the applicant’s rent, private school fees and other bills.[82] However, the respondent notes the applicant continued to contact him seeking advice regarding litigation and other matters.
[82] Respondent’s affidavit filed 15 March 2024 at [28].
It is unclear on the evidence how the applicant met her rental costs and children’s private school fees during the hiatus as it appears the only income of which she was in receipt was the Family Tax Benefit, being approximately $300.00 per fortnight. The respondent speculated that during this period “someone else supported her. The person in the photo”, being a reference to the man pictured in Exhibit R2.[83]
[83] Transcript dated 28 March 2024, pg.153.
Post-August 2014 support
Following the resumption of the relationship in or around August 2014 the respondent resumed paying for the applicant’s rental accommodation in the vicinity of Suburb G.[84] It is uncontroversial that the respondent also continued to pay the applicant’s children’s school fees.
[84] Respondent’s affidavit filed 15 March 2024 at [34].
The respondent states that in the latter years of the relationship he was “probably trying to entice or convince [the applicant] into a de facto relationship”.[85]
[85] Respondent’s affidavit filed 15 March 2024 at [69].
The respondent asserts that his attempts to help the applicant financially gradually developed into something “out of control” and he “just found it too difficult to extricate [himself] from the situation and was still desperately hoping for the kind of married or de facto relationship I wanted for us”. He also says, “I do not quite recall or understand how it happened, but our relationship slowly evolved to a general expectation that I would pay for all of [the applicant’s] expenses”.[86]
[86] Respondent’s affidavit filed 15 March 2024 at [60].
Credit cards
In or around 2016 the respondent provided the applicant with a secondary credit card to his NAB account which the applicant used to pay for her living expenses.[87]
[87] Respondent’s affidavit filed 15 March 2024 at [71].
In or around March 2022 the respondent provided the applicant with a supplementary card to his H Bank credit card.[88] The H Bank credit card did not have a credit limit.
[88] Respondent’s affidavit filed 15 March 2024 at [70].
The credit cards the respondent made available to the applicant, and as a consequence for the benefit of her children, were different to the accounts and credit cards primarily utilised by him.
The respondent asserts that from this point the applicant spent “freely and extravagantly” from $20,000.00 to $30,000.00 each month on discretionary expenses for herself and her children, including luxury travel and entertainment, designer clothing and cosmetic procedures,[89] including plastic surgery.[90] The applicant also withdrew cash from the credit cards. I accept the respondent’s evidence that he felt hurt and used because many of these expenses were incurred in relation to events or travel to which he was not invited to partake.
[89] Respondent’s affidavit filed 15 March 2023 at [71].
[90] Transcript dated 28 March 2024, pg.164.
The applicant, rather strangely, corrected the respondent in this respect by noting that travel was paid for directly by the respondent and thus not included in the discretionary amount. As aforementioned, the applicant undertook the vast majority of her travel without the respondent accompanying her. Nonetheless, all of the applicant’s travel was paid for by the respondent. The applicant further stated that the discretionary spending outlined above also included things like “groceries for [Town EE]… car passes and permits for [Town EE]. It had a lot of other expenses on there, not just entertainment, etcetera, etcetera”.[91]
[91] Transcript dated 25 March 2024, pg.55.
It was accepted by the applicant that at this time the respondent was providing the applicant monthly financial support of $12,000 in rent, $20,000 to $30,000 of discretionary spending, and paying the applicant’s children’s private school fees.[92]
[92] Transcript dated 25 March 2024, pg.55.
It was put to the applicant by Counsel for the respondent that such spending was extravagant and uncontrolled, as previously asserted by the respondent. The applicant did not agree with this characterisation of her spending habits stating “I don’t think it’s extravagant. I think that’s a – that was what we were doing”.[93]
[93] Transcript dated 25 March 2024, pg.56.
Rental and lease support
As aforementioned it is uncontroversial that save for the period of the relationship hiatus the respondent has paid the applicant’s rent since mid-2011.
On 10 April 2019 the respondent provided the applicant an email outlining the financial situation of J Company in support of the applicant’s rental application for the property at KK Street, Suburb G (the KK Street property). The application was successful. The rent was $1,950.00 per week.[94]
[94] Exhibit A1, pgs.35 to 37.
In mid-2022 the respondent further supported the applicant by signing as a co-tenant on the lease of the property at HH Street, Suburb G (the HH Street property) and providing financial information with respect to the income of the J Company Unit Trust. The respondent states he signed as a co-tenant and provided such information as the applicant was otherwise unable to secure the lease. That is no doubt the case. The rent for the HH Street property was approximately $1,000.00 more per week than the rent for the KK Street property, being some $3,000.00 per week.[95] It was acknowledged by the applicant that the respondent has always and continues to pay the rent on the HH Street property.[96]
[95] Respondent’s affidavit filed 15 March 2024 at [68].
[96] Transcript dated 25 March 2024, pg.49.
Trust distribution and superannuation distribution
In the 2020/2021 financial year the respondent made a notional distribution to the applicant through the J Company Unit Trust.[97] The trust deed of the J Company Unit Trust defines a beneficiary to include:[98]
Each and any Unit Holder, the Trustees of each Eligible Trust (acting in such capacity), and each Eligible Corporation and the parents, brothers, sisters, spouses, de facto partners, widows, widowers, children and grandchildren of each Unit Holder…
[97] Transcript dated 25 March 2024, pg.13.
[98] Exhibit A1, pg.45.

Accordingly, it was put to the respondent that the distribution of income to the applicant under the J Company Unit Trust was because the respondent “considered her then a de facto partner”. The respondent did not agree with this proposition.[99]
[99] Transcript dated 28 March 2024, pg.188.
The respondent posits that this distribution formed part of a broader strategy to limit a significant taxation liability which had arisen following the sale of his Z Company shares.[100] The respondent stated:[101]
I had a very large tax problem, I had, as I said, lost a lot of the proceeds recently. I was quite – well, I was, not surprisingly, quite depressed and I was searching for ways to try and reduce the tax pool in any way I could, so…
[100] Respondent’s affidavit filed 15 March 2024 at [64].
[101] Transcript dated 28 March 2024, pg.188.
The respondent’s accountant, Mr DD, stated that the distribution to the applicant occurred in the context of the respondent’s substantial tax liability arising from the sale of the Z Company shares. Specifically, Mr DD stated:
At that stage, [Mr Mihov] was providing substantial financial assistance to [Ms Cizek], and we discussed making a notional distribution to her. I asked [Mr Mihov] if [Ms Cizek]was his de facto spouse, to which he responded (words to the effect of): “no, not really, but I have spent so much on her”. [Mr Mihov] ultimately made a notional capital distribution to [Ms Cizek] and [Mr N] (as well as himself) in the financial year ended 30 June 2021 from the [J Company] Unit Trust, for tax effectiveness. [Mr Mihov] paid the tax liabilities for [Ms Cizek] and [Mr N] which arose from the notional distributions.
Counsel for the applicant put to Mr DD that the applicant had received the distribution notionally as a de facto partner. Mr DD acknowledged “we were pushing the boundaries on what a de facto meant because we were looking at ways at minimising tax”.[102]
[102] Transcript dated 28 March 2024, pg.243.
Counsel for the applicant submits that under cross-examination Mr DD conceded, contrary to his affidavit evidence, that he made the notional distribution to the applicant because he was “comfortable enough” that she constituted a de facto partner of the respondent.[103]
[103] Exhibit A6 at [72].
Counsel for the respondent submits that Mr DD’s employment of the phrase “pushing the boundaries” with regard to the notional distribution is consistent with Mr DD’s affidavit evidence of the respondent not having represented the applicant to Mr DD as his de facto partner.
I prefer the submission of Counsel for the respondent, noting the facial expression of Mr DD at the time he gave this evidence strongly indicated he had been uncomfortable with the notional distribution being made to the applicant at the time.
I do not consider the respondent’s one off use of the applicant for this purpose is in the same category as the applicant’s repeated omissions to Centrelink and the ATO, from the commencement of the relationship until after the 2020/2021 financial year.[104] The respondent “pushed the boundaries” once, in circumstances where he faced a significant tax liability, and did not do so again. Conversely, the applicant repeatedly failed to advise government authorities of the alleged de facto relationship in order to receive approximately $300.00 per fortnight on top the significant financial support she was receiving from the respondent. If the applicant was of the view that she was in a de facto relationship, noting I am of the view that she was not, then she deliberately deceived Centrelink and the ATO in order to obtain financial advantage.
[104] Transcript dated 25 March 2023 at [13]
In the 2021/2022 financial year the respondent instructed Mr DD to establish a member account on behalf of the applicant within the respondent’s self-managed superannuation fund (the Mihov Executive Super Fund). The applicant was required to execute documents appointing her as a director of the trustee of the Mihov Executive Super Fund. The respondent then caused contributions of some $172,496.00 to be made to the applicant’s superannuation account.[105]
[105] Applicant’s written submissions at [184].
It is the evidence of the respondent and Mr DD that much like the trust distribution the superannuation distribution was done for “tax effectiveness”,[106] and part of an overall tax “optimisation strategy”.[107]
[106] Affidavit of Mr DD filed 15 March 2024 at [16].
[107] Transcript dated 28 March 2024, pg.184.
I accept Mr DD’s evidence in this regard.
Memorandum of wishes
The applicant identifies the draft memorandum of wishes provided by the respondent to her on 8 December 2022 as an arrangement for financial support between them. In the draft memorandum of wishes the respondent proposed that upon his death the applicant would continue receiving $45,000.00 per month plus rent for the HH Street property until she receives a benefit under the respondent’s will. Moreover, this document provided for the applicant to receive a lump sum payment of “$10 million (minimum, tbc)”.[108]
[108] Applicant’s affidavit filed 8 March 2024 at annexure MSC3.
The respondent states the original draft memorandum of wishes was prepared in the context of his anticipated significant windfall from the sale of his Z Company shares. The respondent further states that he showed this draft memorandum of wishes to the applicant “to demonstrate the structure of my estate in the event she was prepared to commit to a de facto relationship with me”.[109]
[109] Respondent’s affidavit filed 15 March 2024 at [67] and [105].
The respondent’s assertions in this regard were put to the applicant who rejected the notion, stating rather:
He did it because he knew I was very unhappy and he hoped that it would give me some comfort. It was not to put some sort of condition and say, “This is what it would look like if you commit to something.” It was, “Will this give you comfort?”
Conversely, this proposition was put to the respondent by Counsel for the applicant. In assessing the language used by the respondent in his covering email, such as “it is not the longer-term total structure solution… But it gives you protection at this point”, and contemporaneous texts between the parties including “gives you protection in the interim”, Counsel for the applicant suggested that the respondent did not posit the draft memorandum of wishes to induce greater commitment from the applicant but rather to provide her immediate comfort.[110]
[110] Transcript dated 28 March 2024, pg.194 to 196.
Contextually, the applicant acknowledged that 2022 was a very bad time in the relationship. The respondent consistently asserts that he was concerned that any diminution in his financial support to the applicant would result in the termination of the relationship. Accordingly, it appears, following the significant financial loss to the respondent following the litigation regarding the sale of his interest in Z Company, the respondent sought alternative ways to appease the applicant.
This was plainly unsuccessful as when the respondent queried what the applicant’s thoughts were in relation to the draft memorandum of wishes she stated:
I think the intention as a temporary looks good, but as we know a will can be turned into nothing so easily, unfortunately.
The respondent’s efforts to reduce the applicant’s fear of financial insecurity and induce her to engage in a de facto relationship with him were again unsuccessful.
Post relationship
As abovementioned the respondent continues to pay the rent on the HH Street property. He also continues to provide the applicant approximately a further $15,000.00 per month.[111]
[111] Transcript dated 28 March 2024, pg.197.
The respondent states that on or about 27 July 2023 he cancelled the applicant’s access to his H Bank card as he was “alarmed by her unrestricted and excessive expenditure, and she declined to discuss it” with him.[112] This was put to the applicant, who denied it,[113] and reaffirmed her position that the H Bank card was cancelled shortly after she informed the respondent the relationship was over.
[112] Respondent’s affidavit filed 15 March 2024 at [81].
[113] Transcript dated 25 March 2024, pg.61.
I do not know why the respondent is still financially supporting the applicant. I suspect that as he is a benevolent individual he is awaiting the outcome of this proceeding so as not to disrupt the continuum of support in the event the applicant is successful in establishing that a de facto relationship existed between them. It may also be because he is a co-tenant and guarantor on the lease for the HH Street property. It is plainly not because he considers her as his ex-de facto partner. I am of the view that nothing turns on his financial support of the applicant post separation in determining the seminal question.
Fostered dependence or support for independence
It is patently clear that the respondent has provided immense financial support to the applicant from prior to the commencement of the relationship between the parties and continues to provide that support.
As noted above, the applicant contends that this financial dependence is a particular feature of the de facto relationship between the parties. The applicant further posits that the respondent “encouraged and fostered” this “almost absolute” dependence throughout the relationship.[114]
[114] Applicant’s written submissions at [216].
Specifically, the applicant alleges that the respondent:[115]
(a)told her to move on and not fight over Mr F’s estate;
(b)encouraged her to dispose of any income producing assets;
(c)told her to focus her efforts on philanthropy; and
(d)discouraged her from obtaining independent employment.
[115] Applicant’s affidavit filed 8 March 2024 at [15].
The respondent “categorically” denies these claims.[116]
[116] Respondent’s affidavit filed 15 March 2024 at [95].
The applicant continued to litigate over Mr F’s estate until 2019. The respondent paid the applicant’s legal costs in respect of this litigation. It was put to the applicant by Counsel for the respondent that to do so would be at odds with her assertion that the respondent encouraged her to walk away. The applicant maintained that the respondent encouraged her to move on with words to the effect of “it’s best we move forward and focus on a future. Let’s leave the negative behind”.[117] I consider this unlikely considering the manner in which the respondent supported the applicant financially through the litigation.
[117] Transcript dated 25 March 2024, pg.60.
With regard to the applicant’s assertion that the respondent encouraged her to dispose of any income producing assets, it is entirely unclear what income producing assets the applicant claims to have had. The applicant was declared bankrupt in 2012, and on her own evidence has been entirely financially dependent on the respondent since then, save for the relationship hiatus in 2013/2014.
The applicant asserts that the respondent told her to focus on philanthropy. The respondent denies the applicant’s assertion that he told her to focus on philanthropy. He asserts philanthropy appeared to be something the applicant was interested in pursuing.
Exhibits R4 and A1-A contain email correspondence between the parties attaching draft versions of a bio about the applicant intended to be used for job applications. There was a dispute about who drafted the bio, the applicant or the respondent. On the evidence available it appears the respondent drafted a first copy then the applicant refined it before sending it to the respondent to review. It is inconsequential. The refined bio contained in Exhibit R4, sent from the applicant to the respondent in January 2015, is a draft application for a position with the organisation LL Organisation which emphatically underscores the applicant’s interest in not for profit work at this time.
Moreover, there was a plethora of evidence regarding the parties’ discussions of setting up a philanthropic trust. The following text chain between the parties is pertinent:[118]
The respondent: I have been thinking about the not for profit thing. think it would be nice to look for organizations or causes that you could take an interest in now and develop over the next couple of years and build our philanthropic trust around. Gives you a foundation and an opportunity for boards that we have an interest in and you can broaden from there. I am excited by it. Also as we have discussed before, I would like to include things that all the children can engage in as well.
The applicant: I agree.
The applicant; But need something earning money too.
The applicant; Even if it’s only a little it’s something
The respondent: We can do both
The respondent: I think so anyway
The applicant: I agree entirely
[118] Exhibit A3, pg.24.
The applicant told the Court she remains unemployed however has recently applied for a role as a philanthropy manager at MM Organisation.[119] This suggests the applicant remains, independently of the respondent, interested in pursuing philanthropy.
[119] Transcript dated 25 March 2024, pg.6.
It appears disingenuous for the applicant to suggest that the respondent railroaded her into pursuing philanthropic interests when those interests have, according to her own bio and subsequent job application, remained consistent from prior to the relationship to beyond its termination. Indeed, the respondent’s assertion that the applicant could pursue her philanthropic interests and simultaneously be paid for it appears to be the exact outcome the applicant is currently pursuing.
A further aspect of the applicant’s claim that the respondent fostered her financial dependence on him is the applicant’s assertion the respondent told her she must decline a job offer with B Company as he considered the applicant needed to devote more time to him and their relationship.[120]
[120] Applicant’s affidavit filed 8 March 2024 at [30].
Mr C’s affidavit evidence in this respect was inconsistent with that of the applicant. Mr C states that the respondent made it clear he did not want the applicant working for the person who had offered her the position. In re-examination Mr C confirmed he believed the respondent had a grievance with the individual who offered the applicant the job.
The respondent denies he told the applicant she must decline the role, but rather that he expressed personal misgivings or caution to the applicant about her prospective employer, the B Company Foundation, because he had heard some negativity around governance. I prefer the respondent’s evidence.
Mr C had further indicated in his affidavit that the respondent “generally did not want [the applicant] working unless it was something that [the respondent] was involved in”.[121] In this regard Counsel for the respondent queried whether Mr C’s understanding was that the respondent’s opposition to the applicant taking the role at B Company was because it was something the respondent was not involved in. Mr C stated, “no not necessarily”.[122]
[121] Affidavit of Mr C filed 8 March 2024 at [10].
[122] Transcript dated 25 March 2024, pg.70.
The respondent plainly provided a multitude of support to the applicant in an attempt to make her financially independent. This included but was not limited to supporting her efforts to continue her tertiary education at university, supporting her women’s businesses, supporting the NN Business, supporting the applicant’s attendance at professional seminars such as the OO Group, and assisting the applicant in drafting her bio for job applications.
The financial support provided by the respondent to the applicant, and the manner in which it was provided, cannot be said to have been deliberately calculated to foster the applicant’s dependence on him. The relationship may be more accurately characterised by the respondent’s ever increasing financial support of the applicant in an attempt to address her stress and anxiety in relation to her precarious financial situation, and to induce greater commitment from her.
Accordingly, I accept the respondent’s evidence:[123]
I was also very worried about [Ms Cizek] ending the relationship completely and suspected that any diminution in my financial support of her would result in a termination of it. Extracting myself from the financial expectation became a long, drawn-out process, even though I was sufficiently alarmed to consider seeking legal advice in January 2021. I always premised my financial assurances to [Ms Cizek] on her giving me a much greater commitment to our relationship, and to our situation resembling a marriage with a common domestic living arrangement, and [Ms Cizek] kept promising to include me more in her life. The cycle became never-ending. It became very difficult to extricate myself from the relationship, even after I began to recognise my wishes and hopes for a future together were not reciprocated.
…
Although I became increasingly concerned about [Ms Cizek]'s expenditure of my money, I did not want to terminate her access to the credit cards out of fear of her reaction; I felt it would irretrievably bring the relationship to an end.
[123] Respondent’s affidavit filed 15 March 2024 at [69] and [72].
Conclusion
The financial dependence of the applicant upon the respondent seems to be a high water mark of the applicant’s case in support of the existence of a de facto relationship. However, in this case I consider that the pertinence of the absolute financial dependence is tempered by the respondent’s consistent encouragement of independence.
One should not be distracted by the level of financial largesse the respondent bestowed upon the applicant when determining the seminal question. The magnitude of his generosity is commensurate with his level of wealth.
Section 4AA(2)(e) - the ownership, use and acquisition of their property
The Town EE property
As aforementioned, in June 2016 the purchase of the Town EE property settled. The applicant refers to the Town EE property as “our sports residence”.[124] The respondent rejects the assertion by the applicant that the Town EE property was acquired as a joint residence between the parties. The respondent acknowledges that the applicant “had a vested interest in what he was looking to buy” as at the time, he suspected the applicant “hoped or half-expected” the respondent would register the purchase in their joint names. The respondent confirmed this was “not my intention (at the time)”.[125]
[124] Applicant’s affidavit filed 8 March 2024 at [11.1].
[125] Respondent’s affidavit filed 15 March 2024 at [46].
The respondent purchased the sub-lease on the Town EE property via his corporate vehicle, J Pty Ltd, of which he is the sole director and shareholder. It was put to the respondent by Counsel for the applicant that the applicant had carriage of much of the correspondence with the agent and played a role in the purchase of the Town EE property. The respondent accepted that the applicant was doing the “negotiating or the organising” and he was “doing the funding”. However, the respondent astutely noted that he would “have happily negotiated the price if someone else was paying for it”.[126]
[126] Transcript dated 27 March 2024, pg.127 to 129.
It is accepted that at the time of the purchase the respondent did not intend to purchase the Town EE property in their joint names, or plainly he would have done so.
In this respect it was further noted by Counsel for the respondent that, in contrast to Ms R, the applicant was never made a director or issued shares in J Pty Ltd or Mihov Investment, being the trustee companies through which the respondent primarily generates or holds his wealth.[127]
[127] Respondent’s written submissions at [16].
There was some dispute in this respect as the applicant had attended an OO Group conference in June 2017 where she was provided a badge which states she was a director of J Pty Ltd.[128] In evidence the respondent acknowledged “I provided her with that title, which obviously is not correct, but it was to give her a company umbrella to go to the conference with”.[129] Regardless, Counsel for the applicant accepts that she was never a director of J Pty Ltd.[130]
[128] Exhibit A1, pg.31.
[129] Transcript dated 28 March 2024, pg.148.
[130] Transcript dated 15 April 2024, pg.269.

The respondent organised a birthday party at AD Venue on AE Street for Ms D in 2011. Other than this there is limited evidence of the respondent providing care to the applicant’s children, although noting he did attend some of their school events as the applicant’s date.
Applicant’s relationship with the respondent’s children
The applicant states that although they did not live together, she provided care and support to the respondent’s children throughout the relationship.
Town EE
The applicant states that she cared for the respondent’s four younger children for part of the July school holidays at Town EE each year. The respondent accepts that there were two occasions where the applicant looked after his children at Town EE for a few days because he had unavoidable travel and did not wish to interrupt their sports training by returning the children to their mother’s care in Melbourne.
The applicant further contends that for a period of fourteen weeks during Covid-19 lockdowns Mr N lived with her and her children at the Town EE property and she “cooked [Mr N]’s meals, washed his clothes and attended to his day-to-day parenting”.[177]
[177] Applicant’s affidavit filed 8 March 2024 at [31].
The respondent notes in this respect that Mr N was 18 years of age, attending university, and did not require day-to-day parenting from the applicant.
Mr N further disagrees with the applicant’s characterisation of this period noting that he was perfectly capable of looking after himself. However, Mr N did acknowledge that the applicant did most of the cooking and washing and “certainly controlled kind of everything”.[178] Mr N states of the arrangement that he felt it was not dissimilar to sharing a house with family friends or roommates. As abovementioned the applicant’s use of the Town EE property frustrated Mr N as he felt she took advantage of the situation.
[178] Transcript dated 28 March 2024, pg.111.
Mr N presciently notes that on the rare occasions when the respondent was compelled to leave Town EE during the children’s sports training season, the respondent would make it clear to his children that it was their choice whether they stayed at the Town EE property and completed their training or returned to the care of their mother in Melbourne.
The sleep over
Aside from when the respondent’s four younger children were at the Town EE property with the applicant it is principally accepted that they were either in the care of the respondent or their mother.
However, it was put to the respondent by Counsel for the applicant that a photo of Ms D, Ms P and Ms E together had been taken in mid-2015, at which time the respondent was travelling and the parties’ daughters had a sleepover in the care of the applicant. The respondent stated that “surprises me, but I believe you, yes”.[179]
[179] Transcript dated 27 March 2024, pg.98.
It was subsequently corrected by Counsel for the applicant who advised the respondent, and the Court, that in fact the photograph and sleepover had occurred in early 2015 whilst the respondent was in the country.[180]
[180] Transcript dated 28 March 2024, pg.144.
Pertinently, the respondent noted amongst the confusion that he would be surprised if that had occurred whilst he was away as the mother of his four younger children, Ms R, “was not a big fan of [Ms Cizek] and her family, so – and I wasn’t there, so Ms P would have been with her mother”.[181]
[181] Transcript dated 27 March 2024, pgs.99 to 100.
Counsel for the applicant countered that there must have been some civility between Ms R and the applicant because the parties’ daughters were doing extracurricular activities together and the applicant would often assist in dropping off and picking up his daughter. However, the respondent suggested in this respect that Ms R may not have been aware when the applicant was assisting in this manner.
It is clear that the applicant provided limited care and support to the respondent’s children whilst the respondent was not present.
Emergency Contacts
The respondent was listed as Ms E’s emergency contact for sports activities and a sports trip to New Zealand.
The parties acted as emergency contacts for each other’s children at Town EE. As can be deduced from the below text exchange this was a practical outcome given they shared accommodation at Town EE:[182]
Applicant: Also 3 emergency contact details required, so you, [Ms R], shall I put myself as 3 as I'm [in the area]?
…
Respondent: Love you to be emergency contact if you don't mind
Applicant: Of course, I already put you and mother!
[182] Exhibit A3, pg.30.
The affidavit evidence of Mr N was that his parents, being the respondent and Ms R, “were always the first contact for my siblings or me if we had a problem or needed help with something; I was aware that I could contact Ms Cizek in the event of an emergency, if I could not contact either of my parents (which I never did)”.
The respondent accepted that there was a number of times that the parties were the emergency contacts for their respective children.
The parties’ role as emergency contacts for each other’s children weighs in favour of a de facto relationship. However, this circumstance constitutes a minute aspect of the composite picture.
Ms L and X
Contextually, from the beginning of the relationship between the parties Ms L was an adult and did not live with the respondent.
Ms L’s affidavit evidence was that she had a “friendly” and “good relationship” with the applicant although not a particularly close one. Ms L acknowledged in cross-examination that she got along very well with the applicant. This is reflected in the tenor of the text messages exchanged between them.[183]
[183] Exhibit A5.
Ms L, throughout the period of the relationship, saw the applicant approximately once every three to four months.
The respondent noted that the applicant was largely absent when X, Ms L’s first son and the respondent’s first grandson, was born in 2021.
It was put to the applicant that she had only met X once or twice which the applicant rejected.[184]
[184] Transcript dated 25 March 2024, pg.44.
Subsequently, the applicant adduced four photographs, now contained in Exhibit A4, which were taken on four separate occasions where the applicant interacted with X.
Ms L accepted that the applicant was “very happy” for her and her partner following the birth of X and that the applicant, and indeed the applicant’s mother, had both purchased gifts to welcome X.
The respondent acknowledges that rightly or wrongly he simply did not consider that the applicant shared his level of excitement with regard to X’s birth. However, the respondent did accept that with Covid-19 considerations and each of their medical issues at the time there were plenty of obstacles. I consider that little turns on the failure of the applicant to dote upon X in person.
Relationship between the applicant children and respondent children
The applicant posits that the parties proactively encouraged their respective children to look upon each other as siblings. The applicant’s position in this regard asserts that the parties’ respective children were entwined socially and that the two family units effectively formed a “blended family”.
The respondent accepts the parties respective children interacted but not as step-siblings.[185] He states “although our children knew each other and were even friends, we did not live as a blended family or go out together as a family unit unless we were on holidays”.[186]
[185] Transcript dated 26 March 2024, pg.23.
[186] Respondent’s affidavit filed 15 March 2024 at [36].
What the applicant positions as a blended family, the respondent positions two families “holidaying and doing activities with people who got on well”.[187]
[187] Transcript dated 27 March 2024, pg.78.
Several images of the parties respective children holidaying together and having a good time were put to the respondent, one such example being the image of the parties’ children in the pool at a Town EE property together. In response, the respondent stated “I never denied they got on well. I never denied that we did some things together”.[188]
[188] Exhibit A1, pg.16; Transcript dated 27 March 2024, pg.78.
The applicant’s position is supported by her son Mr C who stated he was particularly close with Mr O, the respondent’s son, and that they continue to see each other approximately twice a week.
The position was further buttressed by reference to a text message exchange between the respondent and the applicant in March 2018:
Respondent: Same. Just been having a very adult conversation with [Mr N]
Applicant: Regarding?
Respondent: Nothing too extreme - just about his need to be prepared to stand up for his sisters including [Ms E] and [Ms D] under any circumstance. He and I both agree that what [Ms D] did to support him when that whole stupid video thing erupted several years ago was very special
In this respect the respondent stated:
…to her great credit, [Ms D] stood up to a bunch of people publicly and, you know, stood up for [Mr N]. And so we had a conversation which was, I think, more along the lines – in person, with him – is you’ve got to think of them like your sisters. You need to stick up for [Ms D], because she stuck up for you, and I think that was entirely appropriate.
It was put to the respondent that there was a “Mihov-Cizek” snapchat which was a snapchat group of the two families combined, although the respondent noted that group included people outside the two families.
It is entirely unsurprising that children of similar ages interacted and had fun together when on holidays and on other occasions. It is also unsurprising that children who like each other and whose parents were in a relationship would defend each other. Similarly, the fact that the parties and their children were engaged in group chats is a practical necessity of the fact that they effectively shared a holiday home and that the parties were in a relationship, whatever the characterisation of that relationship.
Section 4AA(2)(i) - the reputation and public aspects of the relationship
The applicant and respondent had vastly different perceptions of the public reputation of their relationship.
Representations to third parties
Over the course of the relationship the applicant, by omission, asserted to Centrelink and the ATO that she was not in a de facto relationship. The respondent by way of his tax minimisation strategy, and the notional distribution he made to the applicant in the 2020/2021 financial year, asserted that he was in a de facto relationship with the applicant. I have already addressed these matters.
The applicant identifies a number of further representations made by the respondent to third parties as indicative of the reputation and public aspect of the relationship between the parties being one of a de facto relationship. The respondent amongst other things:
(a)nominated the applicant as his partner on his AG Company membership in 2014;[189]
(b)filled out the applicant’s application for the OO Group summit in 2017 identifying her as his partner;[190]
(c)authored a letter to university in 2018 identifying the applicant as his partner;[191] and
(d)authored an email to the applicant to provide to AF Company in support of her rental application in 2019 which indicated that the parties had entwined and shared income.[192]
[189] Exhibit A1-F.
[190] Exhibit A1-J.
[191] Exhibit A1-K.
[192] Exhibit A1-L.
The respondent’s evidence in relation to such representations was as follows:
(a)the AG Company nomination was not strictly a romantic partner nomination, he had previously had his son nominated. Moreover, it cost him nothing and gave the applicant use of the associated benefits whether or not she was travelling with him;
(b)the respondent accepts he, or someone from his office, authored the OO Group application form on behalf of the respondent;[193]
(c)the representations made to the university were “not entirely accurate. But it was a representation that I did for her so that we could sway a decision that she would be allowed to continue to study”;[194] and
(d)the representations made to AF Company were made so the applicant could obtain the lease which the respondent did not believe she would have obtained without his assistance, in context of the fact that she had received notice on her previous house.
[193] Transcript dated 28 March 2024, pg.147.
[194] Transcript dated 28 March 2024, pg.151.
The consistent underlying implication of the respondent’s evidence in respect of such representations is that he was willing to overstate, or indeed lie about, the nature of the relationship between the parties in order to assist the applicant.
Counsel for the applicant acknowledged the respondent was prepared to lie for the benefit of the applicant, however put to the respondent that in such cases he was making these representations because the parties were in fact in a committed relationship. The respondent declined to agree with such a proposition stating:[195]
I’ve said this before, I was doing it because I loved her and I wanted to help. And I don’t apologise for that, I think that’s obvious.
[195] Transcript dated 28 March 2024, pg.154.
Given the willingness of both parties to represent the relationship to third parties in differing ways throughout the course of the relationship to obtain beneficial outcomes, I do not consider the respondent’s representations to be of particularly high value. All but one (the notional distribution) of the respondent’s representations of the relationship were designed to ensure that the applicant obtained beneficial outcomes in circumstances wherein the applicant did not have the means to procure those beneficial outcomes for herself without the respondent’s assistance.
Family and others
The applicant contends that for the duration of the relationship the parties were known to family, friends and work colleagues as a couple. The respondent conversely positions the relationship as that of something less than a de facto relationship, that is, as boyfriend and girlfriend.
The applicant never met the respondent’s parents despite travelling to Region AH, where they resided, multiple times with the respondent. The applicant asserted this was because the respondent’s parents were elderly, and she did not wish to confuse them. Conversely, the applicant’s mother travelled with the parties on occasion.
The applicant relies upon the parties attendance of and presentation at events as a couple, with specific reference to:
(a)joint invitations to work Christmas parties;
(b)joint invitations issued by friends of the parties to weddings, birthdays, and Christmas parties;
(c)events co-hosted for and by the applicant or the respondent for and on behalf of the other party or their respective children;
(d)numerous corporate events the parties attended together; and
(e)the respondent’s attendance at significant school events for the applicant’s children.
Specifically, Counsel for the applicant referred to 2016 when the parties jointly hosted two parties. One being a surprise 60^th birthday party for the respondent and the other a 40^th birthday party for the applicant, each organised by the applicant and paid for by the respondent. The parties’ respective eight children attended both events. The respondent gave a speech at the applicant’s 40^th, alongside her mother and her friend Ms BB.[196]
[196] Transcript dated 27 March 2024, pg.132.
The respondent accepts that he and the applicant attended several social functions and events together over the course of their relationship. Counsel for the respondent submits that such acceptance is not inconsistent with his characterisation of the relationship between the parties as causal, or colloquially boyfriend and girlfriend. I agree with that submission.
Whilst the perception of the parties of the nature of the relationship is a relevant matter, it is not determinative.[197]
[197] Sinclair & Whittaker [2013] FamCAFC 129 at [65].
Similarly, the perception of the relationship provided by witnesses is not a determinative matter of fact, however it is necessary to assess the evidence of the numerous witnesses who swore affidavits and were cross examined regarding the reputation and public aspects of the relationship between the parties.
For the applicant:
(a)Mr C, the applicant’s son, states it became clear to him in around 2011 or 2012 that the relationship between the parties was more than that of friends. He further noted that whilst the parties did not marry or cohabit their relationship was similar to that of a married couple in that they saw each other frequently. Accordingly, Mr C states it was clear to him that the parties were in a committed relationship; and
(b)Ms BB, the applicant’s friend, states that for the duration of the relationship she observed a very close and loving relationship between the parties. Ms BB further notes that the parties were deeply physically, emotionally and financially committed to one another and that for the bulk of the relationship they acted in a manner consistent with being a married couple except for the fact that they did not live together.
For the respondent:
(a)Ms L, the respondent’s daughter, states her father never told her he was dating the applicant, rather the applicant and her children just started attending some family events. Ms L described the relationship as unconventional and difficult to understand or describe, noting it did not appear to be anything more than a close and long-standing friendship. Ms L contends that the parties did not behave in the way she would expect a married or conventional de facto couple to behave, specifically they displayed very little physical affection toward each other;
(b)Mr N, the respondent’s son, states he became aware the parties were dating in or around 2014. Mr N noted the casual and infrequent nature of the relationship and positioned the applicant as a close family friend rather than a de facto partner;
(c)Mr DD, the respondent’s accountant, acknowledges that he never met the applicant but states that he received the distinct impression that the relationship between the parties was a very casual, dating one. This is consistent with Mr DD’s evidence that the notional distribution made from the J Company Unit Trust to the applicant, indicating she was a de facto partner of the respondent, was “pushing the boundaries”; and
(d)Mr CC, the respondent’s friend, states he became aware that the parties were involved romantically sometime during 2011 but did not think much of it as it did not seem the relationship was particularly serious at the time. Mr CC observed that: the relationship between the parties was a casual one; the applicant did not behave as if she was in a committed monogamous relationship; the parties were not physically affectionate to one another; and their conversations did not pertain to sharing a life together.
Unsurprisingly, each of the parties’ witnesses support their respective friend or family member’s perception of the nature of the parties’ relationship. I am not of the view that any of these witnesses’ evidence about the nature of the relationship is anything which did not accord with their observations.
Photographs
Taking into account the photographs of the two families holidaying together, I consider that individual’s observing the two families holidaying could be of the view that the parties and their children were a blended family. Similarly, they could be of the view that they were two families travelling together.
Not one photograph of only the applicant and respondent together was produced in court. Such photographs, if any, may have shed some light on the evidence in relation to the level of affection the parties displayed to each other and how the parties otherwise conducted themselves with each other either when in public in the company of other people such as organised social events including at the children’s school and extra-curricular events, and when in public when they went out privately or travelled together without any of their children.
Conclusion

The totality of the evidence in relation to this circumstance supports that there was a public aspect of the parties’ relationship representative of a de facto relationship and also something less than a de facto relationship. Thus, I consider this circumstance is neutral in the overall determination of the seminal question.
OVERALL CONCLUSION
Upon balancing and considering all of the circumstances of the relationship canvassed in these reasons, I find that the applicant has not established on the balance of probabilities that the parties’ relationship was a de facto relationship.
I am satisfied that the composite picture of the parties’ relationship does not support that the applicant 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”.
Accordingly, a declaration is made pursuant to section 90RD(1) of the Act that the applicant and the respondent were not in a de facto relationship. The applicant’s initiating application is dismissed.

I certify that the preceding three hundred and forty-four (344) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Boymal.
Associate:
Dated: 10 May 2024

File number(s):	MLC 13083 of 2023
Judgment of:	JUDGE BOYMAL
Date of judgment:	10 May 2024
Catchwords:	FAMILY LAW – Threshold hearing – whether the parties were in a de facto relationship – declaration made that the parties were never in a de facto relationship
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4AA and 90RD
Cases cited:	Clarence & Crisp [2016] FamCAFC 157 Colburn & Cleese (2022) FLC 94-105 Denys & Kellett [2022] FedCFamC1A 223 Fairbairn v Radecki [2022] HCA 18 Fox v Percy (2003) 214 CLR 118 Hayes v Marquis [2008] NSWCA 10 Jonah & White [2012] FamCAFC 200 Locke & Norton [2014] FamCA 811 Shelby & Rylan [2022] FedCFamC1A 143 Shelby & Rylan [2022] FedCFamC1F 281 Sinclair & Whittaker [2013] FamCAFC 129
Division:	Division 2 Family Law
Number of paragraphs:	344
Date of hearing:	25, 26, 27 and 28 March 2024 and 15 April 2024
Place:	Melbourne
Counsel for the Applicant:	Ms Fisken
Solicitor for the Applicant:	Glezer Lanteri And Associates
Counsel for the Respondent:	Mr Wilson
Solicitor for the Respondent:	Kennedy Partners

MLC 13083 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS CIZEK Applicant
AND:	MR MIHOV Respondent

ORDER MADE BY:	JUDGE BOYMAL
DATE OF ORDER:	10 MAY 2024