Fairbairn v Radecki - [2021] HCATrans 166

[2021] HCATrans 166

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S2 of 2021

B e t w e e n -
FAIRBAIRN
Applicant
and
RADECKI
Respondent
Application for special leave to appeal

KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND MELBOURNE

ON FRIDAY, 15 OCTOBER 2021, AT 11.29 AM

KEANE J: In accordance with the Court’s protocol when sitting remotely, I will announce the appearances for the parties.

MR B.W. WALKER, SC appears with MR G. LEVICK for the applicant. (instructed by Powe & White Family Lawyers)

MR J. T. GLEESON, SC appears with MR G.M. GOULD and MS D.M. FORRESTER for the respondent. (instructed by Attwaters Solicitors)

KEANE J: Yes, Mr Walker.

MR WALKER: May it please the Court. We appear as your Honours understand on the instructions of the New South Wales Trustee and Guardian, whose role in the proceedings as case guardian is brought about by the unfortunate decline in the cognitive capacity of our client, the applicant. That decline is so severe as to have produced the need for that appointment of the Trustee. Its severity extends, as your Honours understand from the reasons below, to an incapacity to make and be responsible for decisions, including decisions concerning the disposition of property.

One of the issues which, in our submission, renders this a proper case for this Court to take up, is the allied consideration of the extent to which that proven incapacity with respect to matters of property and, for that matter, their own personal care, should also be regarded as having the possibility ‑ and I stress, the possibility ‑ of significance for the question, intimate and personal as it must always be, of the end or the breakdown of the de facto relationship. I have said “end or breakdown” because the provisions to which I am about to come are provisions which are not exactly pellucid in the relation between those two concepts, although there obviously is a considerable and substantial connection.

This is also against the background of what might be, depending upon the outcome, either the contrast or comparison with a state of de jure marriage, where the concept of irretrievable breakdown – for example, that which section 48 of the Family Law Act posits with respect to the prerequisites for divorce – obviously antedates, precedes, the ending of the marriage which is brought about by divorce.

Of course, marriage is a status that appertains to – but may not entirely constitute – a relationship and thus, the irretrievable breakdown of what might be regarded as the marital relationship is that which must precede the ending of the status, according with that relationship by the divorce.

Whether, and to what extent, there is any analogy to be drawn between that well‑known creature of the law of marriage and that not so well‑known creature of the law – but very well…

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

Case: [2021] HCATrans 166
Decision Date

CaseChat Overview and Summary

This case concerned an application for special leave to appeal to the High Court of Australia. The applicant, represented by the New South Wales Trustee and Guardian due to a decline in their cognitive capacity, sought to appeal a decision of the Full Court of the Family Court of Australia. The core of the dispute revolved around the interpretation of "breakdown" of a de facto relationship, particularly in circumstances where one party has become incapacitated. The applicant argued that the severity of their incapacity, impacting their ability to make decisions regarding property and personal care, should be considered in determining the breakdown of the de facto relationship, potentially impacting access to the Family Court's jurisdiction for property adjustment.

The legal issues before the High Court included whether the applicant's proven incapacity to make decisions concerning property and personal care could be considered significant for the question of the breakdown of a de facto relationship. This also involved examining the extent to which the concept of "irretrievable breakdown" in de jure marriage, as defined in the *Family Law Act 1975* (Cth), could be analogised to the breakdown of a de facto relationship. A further issue was whether the Family Court's jurisdiction under sections 90SM and 44(5) of the *Family Law Act* could be "blocked" by a judicial interpretation of "breakdown" that did not account for incapacity, and whether the case presented an appropriate vehicle for the Court to consider these questions, given the potential for similar factual scenarios to arise with an aging population.

The applicant's submission was that the broad terms "breakdown" and "end" in the jurisdictional provisions of the *Family Law Act* concerning de facto relationships should be interpreted functionally and purposively. They contended that if incapacity prevented a party from forming the intention required to demonstrate breakdown, this could lead to a blockage of access to the salutary jurisdiction of the Family Court. The applicant highlighted the common social phenomenon of converting residential property into funds for aged care and argued that the conflict over property realisation in such circumstances, coupled with the Trustee's responsibility for incapable persons' affairs, rendered the case suitable for appellate attention. The respondent, however, argued that the distinction between "breakdown" and "end" of a relationship was not raised in the courts below and that the Full Court had applied the correct legal test, focusing on objective incompatibility of conduct with the continuation of the relationship, rather than intention. The respondent also contended that the Trustee had state law powers to deal with the applicant's property and that the proceedings in the Family Court were misconceived.

The High Court ultimately granted special leave to appeal. The Court acknowledged the general public importance of the case, particularly concerning the stewardship of incapable persons' affairs and the potential for significant costs implications for the Trustee. The Court also noted the applicant's argument that the case presented a useful vehicle for considering the interpretation of "breakdown" in de facto relationships, especially in light of an aging population and the common need to liquidate property for aged care.

Orders