Cizek & Mihov

Case [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

  1. 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.

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AGLC
Cizek & Mihov [2024] FedCFamC2F 584
Case
[2024] FedCFamC2F 584
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 2) was presented with a case where Ms Cizek sought a declaration under section 90RD of the Family Law Act 1975 (Cth) that she had never been in a de facto relationship with Mr Mihov. The dispute arose from a family law matter, with the applicant seeking to formally establish that no de facto relationship had existed between her and the respondent. The court was required to determine whether there was sufficient evidence to support the applicant's claim that the parties had never been in a de facto relationship.

The primary legal issue for the court was whether the evidence presented by the applicant was sufficient to establish that no de facto relationship had existed between the parties. This required an assessment of the nature of the relationship, the duration, and the extent to which the parties shared a financial and domestic life together. The court had to consider whether the relationship met the criteria for a de facto relationship as defined in section 90AA of the Family Law Act 1975 (Cth).

The court found that the evidence presented by Ms Cizek did not sufficiently establish that no de facto relationship had existed between her and Mr Mihov. The applicant's evidence was deemed insufficient to meet the threshold required to make the declaration under section 90RD. Consequently, the court dismissed the application and declared that a de facto relationship had never existed between the parties. The court's decision was based on the balance of probabilities, finding that the evidence did not convincingly demonstrate that the parties had never been in a de facto relationship.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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