FAIRBAIRN & RADECKI - [2020] FCCA 1556

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIRBAIRN & RADECKI

[2020] FCCA 1556

Catchwords:
FAMILY LAW – De facto relationship – property settlement application – jurisdictional issue as to whether there has been a “breakdown” of the relationship in circumstances where wife has lost capacity, is residing in an aged care facility and the NSW Trustee and Guardian bring the proceedings on her behalf – husband asserts that relationship is still on foot – consideration of the actions of the parties and the test to be applied.

Legislation:

Family Law Act 1975, ss.4AA, 48

Cases cited:

Aitken v Deakin [2010] FMCAfam 35

Cadman & Hallett [2013] FamCA 819

Dobson v Seabrook [2015] FCCA 1503

Falk & Falk (1977) FLC 90-247

Hibberson & George (1989) 12 Fam LR 725

Jonah v White (2011) 45 Fam LR 460

Lynam v Director General of Social Security (1983) 52 ALR 128

Pavey & Pavey (1976) FLC 90-051

Price & Underwood [2008] FamCAFC 46

S & B [2004] QCA 449

Sinclair v Whittaker (2013) FLC 93-551

Stanford & Stanford (2012) FLC 93-518

Teh & Muir [2017] FamCA 138

Todd & Todd (No. 2) (1976) FLC 90-008

Applicant:

MS FAIRBAIRN

Respondent:

MR RADECKI

File Number:

NCC 2636 of 2019

Judgment of:

Judge Betts

Hearing date:

5 March 2020

Date of Last Submission:

5 March 2020

Delivered at:

Newcastle

Delivered on:

15 June 2020

REPRESENTATION

Counsel for the Applicant:

Mr Levick

Solicitors for the Applicant:

Powe & White

Counsel for the Respondent:

N/A

Solicitors for the Respondent:

Self-represented

ORDERS

Pursuant to section 90RD of the Family Law Act, the court declares that the de facto relationship between the parties had broken down by no later than 25 May 2018.
The Wife’s costs are reserved.
The proceedings are adjourned to 4 August 2020 at 9.30am for directions.

IT IS NOTED that publication of this judgment under the pseudonym Fairbairn & Radecki is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2636 of 2019

MS FAIRBAIRN

Applicant

And

MR RADECKI

Respondent

REASONS FOR JUDGMENT

Overview:

In 2005/2006, Ms Fairbairn (“the Wife”) and Mr Radecki (“the Husband”) entered into a de facto relationship.
The parties were each in their fifties. The Wife was a widow living on a farm at Town A formerly owned jointly with her late husband. She had two (2) adult children.
The Husband owned two real properties, one being his former family home and the other an investment property. He had four (4) adult children from a previous marriage.
The parties remained living in the Town A property. By 2015 the Wife began a cognitive decline, later diagnosed with a progressive form of dementia. In November 2017 the Wife was admitted to hospital after a fall at home. She has since been placed into an aged care facility as she has high needs which require ongoing nursing care and support.
The Husband has remained living in the Town A property.
The ongoing management of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: FAIRBAIRN & RADECKI [2020] FCCA 1556
Case: [2020] FCCA 1556
Decision Date: 15 June 2020

CaseChat Overview and Summary

In the matter of *Fairbairn & Radecki*, heard before Judge Betts of the Federal Circuit and Family Court of Australia, the dispute concerned the breakdown of a de facto relationship. The court was asked to determine the date upon which the de facto relationship between the parties had ended.

The central legal issue before the court was to ascertain the precise date of the breakdown of the de facto relationship, a determination crucial for the application of certain provisions within the *Family Law Act 1975* (Cth), specifically section 90RD.

Judge Betts applied the principles governing the determination of the end of a de facto relationship, considering the evidence presented by the parties regarding their conduct and interactions. The court concluded that the de facto relationship between the parties had broken down by no later than 25 May 2018. The court also reserved the wife's costs and adjourned the proceedings for further directions.

Orders

Orders of the court

Pursuant to section 90RD of the Family Law Act, the court declares that the de facto relationship between the parties had broken down by no later than 25 May 2018.

The Wife’s costs are reserved.

The proceedings are adjourned to 4 August 2020 at 9.30am for directions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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