Fairbairn v Radecki: The Breakdown of De Facto Relationships

In May 2022, the High Court of Australia unanimously allowed an appeal from the Full Court of the Family Court by the de facto wife in a property matter. The matter concerned the wife’s application for property orders following the breakdown of the parties’ relationship. The question for the court in this matter was whether the relationship had broken down, enlivening the provisions of the Family Law Act and empowering the court to make orders altering the parties’ property interests. The wife’s position was that the relationship had ended, while the de facto husband asserted that the relationship was ongoing, and therefore orders could not be made. The resulting decision of Fairbairn v Radecki sheds light on how courts assess whether de facto relationships have broken down.

Background in Fairbairn v Radecki

The parties commenced their relationship in around 2005. Both were in their 50s and had adult children from previous relationships. Whilst they lived together at a property owned by the wife, they agreed to keep their finances strictly separate. In a written agreement between them they agreed to “quarantine” their respective assets, including the wife’s home where they both lived.

In around 2015, around 10 years into the relationship, the wife suffered a rapid decline in her cognitive functioning which continued in the following years. She was tentatively diagnosed with dementia, but medical professionals also queried whether further diagnostic efforts should be made to rule out Parkinson’s Disease.

By 2017, the parties, whilst still living under the same roof, were sleeping in different bedrooms. The husband travelled overseas for a period of three months despite the wife’s declining health, and during this period the evidence indicated that the wife’s opinions of the husband rapidly cycled between expressions of hatred and ones of love and missing him.

In mid-2017 the wife qualified for a placement at an aged-care facility. After receiving advice from her doctor, the wife signed an enduring power of her attorney in favour of her children.

Upon the husband’s return, he became angry at the wife’s children and in the latter months of 2017:

1. Arranged for the existing power of attorney to be revoked and replaced with one appointing the husband and the wife’s brother as attorneys; and
2. Arranged for a solicitor to see the wife and prepare a new will, which was more favourable to him than the previous one and provided him a life estate in the wife’s home.

In 2018, the NSW Trustee and Guardian was ultimately appointed to make health and welfare decisions on behalf of the wife as well as assigned as her financial manager. The Tribunal (NCAT) declined to appoint the husband to either of these roles in circumstances where there was concern that he facilitated the preparation of her power of attorney when she was significantly cognitively impaired. The Trustee was also appointed to circumvent the uncooperative relationship between the parties’ children.

Between 2018 and 2019 the husband was uncooperative and unsupportive of the wife and appeared to disregard their earlier agreement to maintain separate finances.

Conduct by the husband during this period included:

1. A refusal to leave the wife’s home to enable it to be sold to fund the payment of a refundable payment deposit at the aged care facility (despite him owning two other properties);
2. A failure to pay rent whilst living at the wife’s property, allowing mortgage payments, rates and other property outgoings (in the wife’s name) to accrue; and
3. Declining to disclose his financial circumstances to Centrelink resulting in the wife’s income support payments being suspended.

However, some of the husband’s conduct was supportive of the wife. For example, he purchased a van to transport the wife and brought her home each week “in the interest of her wellbeing”. He also regularly visited her at the aged care facility.

By 2019, the Trustee had reached the conclusion that the de facto relationship between the parties had broken down. The husband refuted this and maintained it was the wife’s wish that he remain living at her home. The wife’s cognitive decline deemed it impossible to ascertain her views about the relationship.

The original decision in Fairbairn v Radecki

At first instance, the court found for the wife, concluding that the relationship had broken down and making orders enabling the trustee to sell the wife’s property on her behalf.

The husband appealed, and the Full Court of the Family Court found that the primary judge had erroneously found that the relationship had ended, instead concluding that none of the husband’s conduct was fundamentally inconsistent with a continuing de facto relationship. The Full Court further noted that the husband’s behaviour could be explained by way of protracted dispute between him, the trustee and the wife’s children.

When has a de facto relationship broken down?

The jurisdiction of the federal family law courts to order property settlements arises when a de facto relationship has broken down. Whilst the Act provides guidance as to the relevant factors that are to be taken into consideration when ascertaining whether a de facto relationship exists or has existed, there is no such guidance in relation to the breakdown of such a relationship. Case law has developed and provides guidance on ascertaining whether parties continue to have “a relationship as couple living together on a genuine domestic basis”.

This includes the following findings:

1. Living separately (particularly where this “involuntary”) will not necessarily result in the breakdown of a de facto relationship. Examples include where one party is working interstate or internationally, or where the couple is separated by one spending time at a care facility or hospital due to ill health;
2. It is possible for a de facto relationship to have broken down despite the parties living under the same room, thus living “separately and apart”. This can take place where the spouses were effectively “living lives separate from one another”.

High Court findings in Fairbairn v Radecki

The High Court in this matter turned to the circumstances that had occurred since the wife had moved into the aged care facility. It found that the mere fact that the parties were living apart was not enough to establish a breakdown of the relationship. Neither was the circumstance of the wife’s mental incapacity sufficient on its own to make a finding that the relationship had ended.

Instead, the husband’s conduct, and his persistent refusal to make “the necessary or desirable adjustments” required to demonstrate an ongoing relationship were reflective of the breakdown. The parties’ previous mutual commitment to a shared life ceased when the husband refused to act in support of the wife and contrary to her needs. Together, the court found that these factors ultimately amounted to a breakdown of the de facto relationship in mid-2018.

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