What constitutes the breakdown of a de facto relationship?

Two weeks ago, the High Court handed down their decision in the matter of Fairbairn v Radecki [2022] HCA 18, which determined the question of, if and when a de facto relationship had broken down. The outcome of this question is important in Family Law matters because the Court will only have jurisdiction to alter property interests of the parties to a de facto relationship if the relationship has in fact broken down (section 90SM of the Family Law Act).

The facts of this case were that Ms Fairbairn and Mr Radecki commenced a de facto relationship in about 2005/2006. They resided in a property owned by Ms Fairbairn but kept their finances strictly separate and entered into various agreements to document this intention. The fact that a de facto relationship had existed between the parties was not in dispute.  By 2017 Ms Fairbairn was in poor health and had been diagnosed with dementia. Her condition deteriorated and she required full time care. In early 2018 Ms Fairbairn went into an aged care facility. Thereafter, Ms Fairbairn’s adult children from her previous relationship and Mr Radecki were in dispute about her care and financial arrangements. The children wanted the house sold to finance Ms Fairbairn’s residential care. Mr Radecki did not want the house sold so that he could continue to reside there. He also sought to revoke the children’s power of attorney and instructed a solicitor to make a new Will from Ms Fairburn which would increase his entitlements to her assets.

The NSW Guardian and Trustee (“the Trustee”) were appointed by New South Wales Civil and Administrative Tribunal (“NCAT”) to be Ms Fairburn’s case guardian in circumstances where she could no longer capable of managing her own affairs. The Trustee commenced proceedings in the Federal Circuit Court (as it then was) seeking orders for the sale of Ms Fairbairn’s property.

Decision at first instance

The trial judge was of the view that Mr Redecki’s conduct was “incompatible with the ongoing existence of the de facto relationship”. His Honour said that irrespective of the de facto husband’s actual intentions, the effect of his actions meant that “the law should objectively impute to him the requisite intention to separate”. The primary judge made a declaration that the de facto relationship between the parties “had broken down by no later than 25 May 2018”.

Mr Radecki appealed that declaration and contended that the relationship had not broken down. The appeal was opposed by the Trustee.

Appeal to the Full Court of the Family Court (as it then was)

The main issue on appeal was whether the Court could objectively impute to the Mr Radecki an intention to separate. It was determined that they could not, and the Full Court explained that a finding that Mr Radecki had the intention to end the de facto relationship was not available on the evidence.  The Full Court said that there was no relevant change in circumstances in the parties’ relationship to establish that the de facto relationship had ended. The appeal was allowed and orders of the primary judge set aside.

Appeal to the High Court

Ms Fairbairn successfully appealed the decision of the Full Court. In determining whether the de facto relationship had broken down, the High Court considered the actions of Mr Radecki and particularly his actions during the demise of Ms Fairbairn’s mental capacity. The High Court agreed that the parties’ relationship had broken down in circumstances where:

• Mr Radecki’s actions were “inconsistent with a ‘fundamental premise’ of their relationship, namely the strict separation of their assets”;
• Mr Radecki’s refusal to permit Ms Fairbairn’s house to be sold to pay for her care; and
• the fact that Mr Radecki’s conduct was “so marked” that it justified the intervention of NCAT and the appointment of a trustee.

Outcome

The significance of this case is that a de facto relationship will have broken down if one party refuses to make the ‘necessary or desirable adjustments’ to support the interests of their partner, particularly when their conduct is contrary to their partner’s needs. Of course, every matter will turn on its facts and the breakdown of a de facto relationship will be obvious in some cases more than others.

Has this article created questions for you about your relationship? If you would like to discuss this with one of our experienced Family Law Team please contact us on 8525 2700 or click here to request an appointment.

Article written by Kirstin Attard
Photo by Toa Heftiba on Unsplash