The breakdown of a de facto relationship – Lessons from the High Court

The recent High Court case of Fairbairn & Radecki [2022] HCA 18 highlights the difficulty in determining when a de facto relationship is considered to have broken down. Each case will ultimately turn on the unique circumstances of the relationship.

In Fairbairn & Radecki the Trustee and Guardian for the de facto wife sought special leave to appeal to the High Court against orders made by the Full Court of the Family Court.

Summary of the Facts

  1. Mrs Fairbairn and Mr Radecki commenced a relationship in late 2005 to early 2006.
  2. Throughout the relationship the parties agreed to keep their assets separate. This arrangement was reflected in the two cohabitation agreements they entered into during the relationship. The parties lived in a property owned by Mrs Fairbairn.
  3. In 2015, Mrs Fairbairn’s cognitive health began to decline and she was diagnosed with dementia in 2017 and placed in an aged care facility. Mr Radecki remained living in the property.
  4. The Trustee and Guardian for Mrs Fairbairn sought to sell the property in order to fund her ongoing care. Mr Radecki opposed the sale as he wanted to continue to live in the property.
  5. The Trustee and Guardian made an application to the Family Court seeking a property settlement on the basis that the relationship between Mrs Fairbairn and Mr Radecki had broken down. Mr Radecki opposed the application.
  6. 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 Mr Radecki’s conduct was not completely inconsistent with a continuing de facto relationship and more was needed to conclude that the relationship had in fact broken down.
  7. On 15 October 2021 the High Court granted special leave to the Trustee and Guardian for Mrs Fairbairn to appeal the decision of the Full Court. The High Court ultimately found that the relationship between the parties had broken down by the latest May 2018.

What did the High Court consider?

The High Court found the breakdown of the relationship was not caused by Mrs Fairbairn’s cognitive decline and physical separation from Mr Radecki when she was placed in an aged care facility.

An essential consideration was the parties’ decision to keep their assets separate during the relationship, however upon Mrs Fairbairn’s cognitive decline, Mr Radecki began to act contrary to this arrangement and did not make ‘necessary or desirable adjustments’ in favour of Mrs Fairbairn’s interests and care. His conduct included:

  • securing an enduring power of attorney giving him considerable control over Mrs Fairbairn’s assets;
  • obtaining a revised will while Mrs Fairbairn was hospitalised which was in his interests and led to the NSW Civil and Administrative Tribunal and the NSW Trustee and Guardian intervening;
  • failing to cooperate with the Trustee and Guardian and Mrs Fairbairn’s adult children from a previous relationship concerning her ongoing care; and
  • refusing to agree to the sale of Mrs Fairbairn’s property to fund her ongoing care, when he owned two properties and contributed little to Mrs Fairbairn’s costs.

Mr Radecki’s conduct did not support a mutual commitment to a shared life with Mrs Fairbairn and therefore the existence of a de facto relationship.

This case highlights that a mutual commitment to a shared life does not necessarily require the couple to be living together or financial interdependence, and the importance of how the parties conducted themselves during the relationship which can be quite complex.

How we can help

Moores’ Family and Relationship Law team can assist in providing advice relating to the breakdown of de facto relationships. In the event you are not sure whether you are in a de facto relationship, please read our article linked here.

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Please contact us for more detailed and tailored help.

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