Wuopio & Adamikova

Case [2025] FedCFamC1A 111

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Wuopio & Adamikova [2025] FedCFamC1A 111

Appeal from: Wuopio & Adamikova [2024] FedCFamC2F 1777
Appeal number: NAA 20 of 2025
File number: BRC 4321 of 2023
Judgment of: STRUM J
Date of judgment: 26 June 2025
Catchwords: FAMILY LAW – APPEAL – Appeal against finding that no de facto relationship existed between the parties – Leave to appeal not required – Correctness test – Appellant asserts incompetence of counsel – Where appellant asserts failure to call a witness and to cross-examine another witness – Consideration of test in OP v TP & The Child Representative (Conduct of Counsel) (2002) 30 Fam LR 281 – Consideration of whether a more stringent test applies in financial matters than in parenting matters – Test not satisfied – Appeal dismissed – Costs order made against appellant in a fixed sum.
Legislation:

Evidence Act 1995 (Cth) s 128

Family Law Act 1975 (Cth) ss 4AA, 79A, 90RD and 90SM

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.10 and r 13.39
Cases cited:

Clifton & Stuart (1990) 14 Fam LR 511

Colburn v Cleese (2022) 65 Fam LR 560; [2022] FedCFamC1A 147

Dakin & Dakin [2012] FamCAFC 120

Davila & Huffman [2024] FedCFamC1A 50

Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339

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

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

Maddax & Danner [2016] FamCAFC 176

Markusson & Markusson (No 3) [2024] FedCFamC1A 196

Nord & Van (2018) FLC 93-833; [2018] FamCAFC 75

Nudd v The Queen (2006) 225 ALR 161; [2006] HCA 9

OP v TP & The Child Representative (Conduct of Counsel) (2002) 30 Fam LR 281; [2002] FamCA 1155

Piovene & Muhlfeld [2025] FedCFamC1A 46

R v Birks (1990) 19 NSWLR 677

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Number of paragraphs: 93
Date of hearing: 23 May 2025
Place: Heard in Melbourne, delivered in Sydney
The Appellant: Litigant in person
Counsel for the Respondent: Ms Downes
Solicitor for the Respondent: Chomley Family Law

ORDERS

NAA 20 of 2025
BRC 4321 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR WUOPIO

Appellant
AND:

MS ADAMIKOVA

Respondent

ORDER MADE BY:

STRUM J

DATE OF ORDER:

26 JUNE 2025

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs, fixed in the sum of $10,000.

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…

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AGLC
Wuopio & Adamikova [2025] FedCFamC1A 111
Case
[2025] FedCFamC1A 111
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Mr Wuopio, the appellant, brought an appeal against a decision that found no de facto relationship existed between him and Ms Adamikova, the respondent. The primary judge had ruled in favour of the respondent, and Mr Wuopio sought to challenge this finding, alleging incompetence of his counsel during the trial. The court was required to determine whether the appellant's counsel was incompetent, whether this incompetence affected the outcome of the trial, and whether the appeal should be dismissed.

The court considered the test for incompetence of counsel as outlined in OP v TP & The Child Representative (Conduct of Counsel) (2002) 30 Fam LR 281. The appellant argued that his counsel failed to call a witness and to cross-examine another witness, but the court found no evidence that the appellant had considered or taken steps to terminate his counsel’s retainer. The court also noted that the appellant did not object to the counsel's decisions during the trial. Applying the test from OP v TP, the court found that the appellant's counsel was not incompetent and that the outcome of the trial would not have been different had the counsel acted differently. The court further held that the legal representation was not equivalent to no representation at all, nor was it perverse.

The court dismissed the appeal and made a costs order against the appellant. The respondent had filed a Schedule of Costs in the sum of $15,654.63, but the court fixed the costs in the sum of $10,000, considering the appellant's total lack of success in the appeal. The court concluded that the circumstances justified an order for costs.

The court's final order was that the appeal be dismissed, and the appellant pay the respondent’s costs in the sum of $10,000.

Orders

Orders of the court

NAA 20 of 2025

BRC 4321 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR WUOPIO

Appellant

AND:

MS ADAMIKOVA

Respondent

ORDER MADE BY:

STRUM J

DATE OF ORDER:

26 JUNE 2025

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs, fixed in the sum of $10,000.

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

The only indication given by the appellant at trial that might convey dissatisfaction with his counsel was the following statement by him, in cross-examination, in response to a question by the counsel for the respondent: “I wish I had of [sic] had you as my barrister because I would have that information” (Transcript 29 November 2024, p.16 lines 25–26). However, the transcript does not reveal, nor is there any further evidence on appeal, that the appellant considered or took any steps to terminate his counsel’s retainer. Similarly, and as already observed above, the transcript does not reveal that the appellant, at any time, raised any objection when his counsel informed the primary judge that there was no reliance upon the affidavit of Mr C, or when his counsel did not demur, when counsel for the respondent informed her Honour that he understood that Ms B was not required for cross-examination.CONCLUSION In the circumstances, if the applicable test in this case be that set out in OP v TP, I am not satisfied that counsel for the appellant at trial was incompetent, or that his forensic decisions were wrong. Even if that not be so, I am not satisfied that it affected the judgment of the primary judge and that, but for those matters, a different result would have been reached. All the more so, I am not satisfied that there was any incompetence on the part of counsel for the appellant at trial such that his legal representation was equivalent to no representation at all, or perverse, so as to affect the judicial process or the fairness of the trial: Clifton & Stuart. Rather, similar to that which Gummow and Hayne JJ said in Nudd v The Queen (2006) 225 ALR 161 at [162]:… just as in medicine there may be terminal cases which not even the most brilliant surgeon can remedy, there will be prosecution cases which an accused could not successfully defend with the aid of the most resourceful and competent of counsel. … Accordingly, the appeal will be dismissed.COSTS Counsel for the respondent advised the Court at the conclusion of the hearing of the appeal, that, if the appeal was unsuccessful, the respondent sought an order for costs. The respondent filed a Schedule of Costs on 20 May 2025 in the sum of $15,654.63. Her counsel advised the Court that, whilst the costs there particularised were in accordance with the scale prescribed in the Rules, they were specified on a solicitor/client basis, rather than a party/party basis, and that the respondent was content for the Court, if minded to make an order, to fix the quantum. As the appellant has been wholly unsuccessful, I consider that there are circumstances that justify the Court in making an order for costs, and I fix such costs in the sum of $10,000.

Ratio Decidendi

Legal Principle Established

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