We left part 1 of this article with the NSW Trustee and Guardian (‘TAG’) commencing family law proceedings in the Federal Circuit Court on behalf of Ms Fairbairn, a lady suffering from dementia and needing to move into aged care. Readers will remember that Ms Fairbairn’s home (which she owned in her sole name) needed to be sold to fund her move into aged care and that her de facto husband, Mr Radecki, opposed this sale – he was still living in the property.

In part 2 of this article, we will explain what happened when the matter reached court, and how the central issue of the matter became whether the parties’ de facto relationship had come to an end or not.

In the Federal Circuit Court (now the Federal Circuit and Family Court of Australia)

The family courts will generally only find it is just and equitable to order that the assets of a married or de facto couple be divided after the break down of a de facto relationship. They cannot make such orders if in all the circumstances it would not be just and equitable to do so. TAG, on behalf of Ms Fairbairn, commenced family law proceedings on the basis that Ms Fairbairn and Mr Radecki’s de facto relationship had ended.

Mr Radecki argued that their relationship had not ended, and that the court had no power to order that Ms Fairbairn’s house be sold as it would satisfy the just and equitable requirement in section 79(2) of the Family Law Act.

The trial Judge agreed with TAG and found that the de facto relationship had in fact broken down and ended by 25 May 2018. It found Mr Radecki was no longer acting in Ms Fairbairn’s best interests or in accordance with the parties’ agreement that they would keep their assets separate. The judge was critical of Mr Radecki, finding he was favouring his own financial interests by trying to remain living in Ms Fairbairn’s home rent-free and in failing to cooperate with the steps Ms Fairbairn’s children were taking to address her health needs.

Appeal to the Full Court

Mr Radecki appealed to the Full Court (3 Judges), who sided with Mr Radecki and held the parties’ de facto relationship had not come to an end, despite Mr Radecki’s conduct. The Full Court characterised Mr Radecki’s conduct as merely ‘bad behaviour’ that is ‘all too often a hallmark of a relationship.’

Appeal to the High Court of Australia

TAG sought leave to appeal to the High Court, which was granted and proceeded to hearing before 7 Judges.

The primary argument TAG made was that the de facto relationship had broken down when Ms Fairbairn moved into aged care and the parties stopped living together, regardless of whether genuine love or affection continued. In the alternative, TAG argued that the relationship had broken down based on Mr Radecki’s behaviour and conduct.

The High Court rejected TAG’s primary argument and held that a de facto relationship does not come to an end simply because a couple stops living together. A de facto relationship is deemed to have broken down when, having regard to all the circumstances, two persons no longer have a relationship as a couple living together on a genuine domestic basis.  

“Living together” is not just about two people physically cohabitating under the one roof, but the various ways couples share their lives together in a relationship in the modern world. In this case, the lack of physical cohabitation alone could not determine whether the de facto relationship continued or had broken down. Similarly, Ms Fairbairn’s decline in capacity alone could not determine whether the relationship was ongoing or over.

The High Court accepted TAG’s alternative argument, finding that Mr Radecki was no longer acting in Ms Fairbairn’s best interests. He persistently refused to make necessary or desirable adjustments that might have evidenced an ongoing relationship, such as allowing Ms Fairbairn’s home to be sold to finance her move into age care, that would usually be made by a loving and caring partner. The High Court found that the separation of the parties’ assets was an essential feature of the parties’ relationship and Mr Radecki had been acting as if he were no longer bound by that agreement.

Conclusion

The High Court’s decision provides fresh guidance as to the factors that will be considered when determining whether a de facto relationship has come to an end. The decision also reaffirms that a de facto relationship does not end simply because the parties are no longer physically living together. Whether or not parties are acting in each other’s best interests will be a significant factor considered by the courts in family law proceedings where parties disagree about the existence of a de facto relationship or when that relationship came to an end.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*