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.
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- Cizek & Mihov [2024] FedCFamC2F 584
- Case
- [2024] FedCFamC2F 584
- Decision Date
CaseChat Overview and Summary
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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