Fairbairn v Radecki

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.