Fairbairn v Radecki

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.