KIEFEL CJ, GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ
FAIRBAIRN APPELLANT
AND
RADECKI RESPONDENT
Fairbairn v Radecki
[2022] HCA 18
Date of Hearing: 8 March 2022 Date of Judgment: 11 May 2022
S179/2021
ORDER
1. Appeal allowed.
2.Set aside orders 2, 3 and 4 of the Full Court of the Family Court of Australia made on 11 December 2020 and, in their place, order that the appeal to that Court be dismissed.
3.The NSW Trustee and Guardian pay the costs of both parties of the application for special leave to appeal and of the appeal.
On appeal from the Family Court of Australia
Representation
B W Walker SC with G Levick and R J May for the appellant (instructed by Powe & White Family Lawyers)
J T Gleeson SC with D M Forrester for the respondent (instructed by Attwaters Solicitors)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Fairbairn v Radecki
Family law – De facto financial cause – Alteration of property interests – Meaning of "breakdown of de facto relationship" – Where appellant and respondent had been in de facto relationship and resided in appellant's home – Where appellant and respondent agreed to keep assets strictly separate – Where appellant subsequently suffered rapid cognitive decline and diagnosed with dementia – Where NSW Trustee and Guardian ("Trustee") appointed to manage appellant's financial affairs – Where Trustee moved appellant into aged care facility permanently and resolved to sell appellant's home to fund aged care facility costs – Where respondent opposed proposed sale of home – Where Trustee sought property settlement orders pursuant to s 90SM of Family Law Act 1975 (Cth) – Whether de facto relationship had broken down within meaning of s 90SM.
Words and phrases – "assets strictly separate", "breakdown of a de facto relationship", "cognitive decline", "cohabitation", "de facto relationship", "financial manager", "living together on a genuine domestic basis", "mutual commitment to a shared life", "necessary or desirable adjustments", "NSW Trustee and Guardian", "property settlement orders", "sharing life as a couple".
KIEFEL CJ, GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ. In late 2005 or early 2006, the appellant and the respondent commenced a de facto relationship. They agreed to keep their assets strictly separate but lived in a house owned by the appellant ("the home"). The appellant was subsequently diagnosed with dementia. By 2017, the appellant's capacity to make long-term decisions was largely, if not completely, absent.
In January 2018, the NSW Civil and Administrative Tribunal ("NCAT") appointed the NSW Trustee and Guardian ("the Trustee") to make health and welfare decisions on behalf of the appellant and, subsequently, to be her financial manager. In March 2018, the Trustee decided to move the appellant into an aged care facility, where she has since resided. The Trustee wished to sell the home to fund the appellant's ongoing care. 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 v Radecki [2022] HCA 18
Case
[2022] HCA 18
Decision Date
CaseChat Overview and Summary
The appeal in *Fairbairn v Radecki* concerned a dispute over property interests arising from a de facto relationship. The appellant, Ms Fairbairn, and the respondent, Mr Radecki, had been in a de facto relationship and resided together in Ms Fairbairn's home. During the relationship, they agreed to keep their assets strictly separate. Subsequently, Ms Fairbairn experienced a rapid cognitive decline, leading to a diagnosis of dementia. The NSW Trustee and Guardian was appointed to manage her financial affairs. The Trustee moved Ms Fairbairn into an aged care facility and resolved to sell her home to fund these costs, a decision opposed by Mr Radecki. The Trustee sought property settlement orders under s 90SM of the *Family Law Act 1975* (Cth).
The central legal issue before the High Court of Australia was whether the de facto relationship between Ms Fairbairn and Mr Radecki had broken down within the meaning of s 90SM of the *Family Law Act 1975* (Cth). This required the Court to consider the circumstances under which a de facto relationship can be considered to have ended, particularly when one party has suffered a significant cognitive decline and their affairs are managed by a financial manager.
The High Court allowed the appeal, setting aside the orders of the Full Court of the Family Court of Australia. The Court reasoned that the breakdown of a de facto relationship is not solely determined by the cessation of cohabitation or the inability of one party to participate in the relationship. Instead, it requires an assessment of whether the parties have ceased to live together on a genuine domestic basis, with a mutual commitment to a shared life. In this instance, the Court found that Ms Fairbairn's cognitive decline and subsequent placement in aged care, managed by the Trustee, did not, in itself, signify a breakdown of the de facto relationship for the purposes of s 90SM. The Court concluded that the relationship had not broken down in a manner that would preclude property settlement orders.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside orders 2, 3 and 4 of the Full Court of the Family Court of Australia made on 11 December 2020 and, in their place, order that the appeal to that Court be dismissed.
3. The NSW Trustee and Guardian pay the costs of both parties of the application for special leave to appeal and of the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
KIEFEL CJ, GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ
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Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ