Breakdown of a De Facto Relationship

Fairbairn v Radecki (2022) FLC 94-083; [2022] HCA 18

Relationships in the modern world Fairbairn v Radecki (2022) FLC 94-083; [2022] HCA 18. In this recent High Court decision, the Trustee and Guardian for the de facto wife sought special leave to appeal against orders made by the Full Court of the Family Court of Australia.

The Full Court found that there was no basis for the primary judge to have concluded that the de facto relationship between the parties had ended. After granting special leave, the High Court had to consider whether a de facto relationship had broken down within the meaning of s 90SM of the Family Law Act 1975.

The de facto husband and wife had commenced a relationship in around late 2005 to early 2006. The parties agreed to keep their assets strictly separate but lived in a property owned by the de facto wife. The de facto wife was subsequently diagnosed with a progressive form of dementia, and was placed in an aged care facility in 2017. The de facto husband remained living in the property. When the Trustee and Guardian for the de facto wife sought to sell the property in order to fund the wife’s ongoing care, the husband strongly opposed this course and wished to remain living in the home.

The Trustee and Guardian issued court proceedings seeking property settlement orders pursuant to s 90SM. At first instance, the primary judge found that the relationship had broken down by at latest May 2018. On appeal to the Full Court, it was found that the husband’s conduct was not fundamentally inconsistent with a continuing de facto relationship, and that ultimately more was needed to conclude that a de facto relationship had broken down.

The appeal was upheld.

On 15 October 2021, the High Court granted special leave to the Trustee and Guardian of the de facto wife to appeal the decision of the Full Court. The Court ultimately found that having regard to all the circumstances, including the conduct of the husband, the de facto relationship between the parties had broken down by no later than May 2018.

Of significance, the Court found that an essential feature of the relationship between the parties was that they kept their finances separate from each other. The parties had entered into a Cohabitation Agreement which recorded that the parties had agreed to separate their respective property. However by 2017, when the wife suffered a significant cognitive decline and was placed in an aged care facility, the husband began to act as if he were no longer bound by the arrangement.

The Court imputed that there was no longer a mutual commitment to a shared life due to the husband’s conduct in acting contrary to and against the wife’s interests.

Such conduct included:

• Securing a new enduring power of attorney giving him considerable control over the wife’s assets;
• Procuring a revised will while the wife was hospitalised, which markedly favoured his interests;
• Failing to cooperate with the Trustee and wife’s children concerning her ongoing care;
• Refusal to permit the wife’s property to be sold. The Court also made note that the parties occupied separate rooms by 2017.

After having considered all of the circumstances, the Court found that the husband’s conduct in acting contrary to and against the wife’s interest showed that his commitment to a shared life with the wife had ceased, and therefore the de facto relationship had come to an end.

The Court made orders that the Appeal be allowed and that the appeal to the Full Court be dismissed.