Has your de facto relationship broken down?

The High Court decision of Fairbairn v Radecki [2022] HCA 18 considered the meaning of “breakdown of a de facto relationship” for the purpose of making property settlement orders pursuant to section 90SM of the Family Law Act 1975 (Cth) (“the Act”).

The facts

Since late 2005 or early 2006, Ms Fairbairn and Mr Radecki had been in a de facto relationship. An important aspect of their relationship was the agreement to keep their assets separate. After suffering a rapid cognitive decline in 2015, Ms Fairbairn was diagnosed with dementia in 2017. The NSW Civil and Administrative Tribunal appointed the NSW Trustee and Guardian to manage Ms Fairbairn’s financial affairs. The Trustee’s decision to sell Ms Fairbairn’s home was faced with resistance by Mr Radecki, requiring the Trustee to seek property settlement orders from the then Federal Circuit Court of Australia pursuant to section 90SM of the Act. The question then became whether Ms Fairbairn and Mr Radecki’s de facto relationship had broken down.

The finding

Ultimately, the High Court held that the parties’ de facto relationship had broken down, with the “breakdown” being defined as “end” or “breakup”. This was not because Ms Fairbairn and Mr Radecki were no longer cohabiting, nor was it because of Ms Fairbairn’s mental incapacity. Rather, the relevant factors were as follows:

  1. From 2017, the parties were occupying separate rooms;
  1. Mr Radecki was not acting in a way to keep his and Ms Fairbairn’s assets separate, which was a fundamental aspect of the relationship, including:
  1. Refusing to allow Ms Fairbairn’s home to be sold; and
  1. Securing a new enduring power of attorney and revised will, in his favour, on behalf of Ms Fairbairn.
  1. Mr Radecki’s parsimonious attempts to contribute to Ms Fairbairn’s care; and 
  1. Mr Radecki’s conduct requiring the intervention of the NSW Civil and Administrative Tribunal and the NSW Trustee and Guardian.

In all the circumstances, Mr Radecki demonstrated a failure to make the necessary or desirable adjustments that may have evidenced an ongoing relationship. The decision of the primary judge that the de facto relationship had broken down was upheld by the High Court.

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