RADECKI & FAIRBAIRN
[2020] FamCAFC 307
•11 December 2020
FAMILY COURT OF AUSTRALIA
| RADECKI & FAIRBAIRN | [2020] FamCAFC 307 |
| FAMILY LAW – APPEAL – PROPERTY – DE FACTO RELATIONSHIPS – Whether a de facto relationship had broken down – Dispute between the appellant and the NSW Trustee & Guardian as to how the de facto wife’s aged care facility costs should be paid – Intention to separate – Where the primary judge objectively imputed to the appellant an intention to separate – Where a finding that the relationship had broken down was not available on the evidence – No relevant change of substance in the de facto relationship from when it commenced – Appeal allowed – Orders set aside – Initiating Application dismissed – Costs certificate granted to the appellant for the appeal. |
| De Facto Relationships Act 1984 (NSW) Malek, Hodge M, Phipson on Evidence (Thomson Reuters, 19th ed, 2018) |
| Cadman & Hallett [2013] FamCA 819 Cadman & Hallett (2014) FLC 93-603; [2014] FamCAFC 142 Clarence & Crisp (2016) FLC 93-728; [2016] FamCAFC 157 Herford & Berke(No 2) (2019) FLC 93-919; [2019] FamCAFC 182 Hibberson v George (1989) 12 Fam LR 725; [1989] NSWCA 100 Jennings v Jennings (1997) FLC 92-773; [1997] FamCA 29 Lynam v Director-General of Social Security (1984) FLC 91-577 S v B(No 2) (2004) 32 Fam LR 429; [2004] QCA 449 Sinclair & Whittaker (2013) FLC 93-551; [2013] FamCAFC 129 Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 |
| APPELLANT: | Mr Radecki |
| RESPONDENT: | Ms Fairbairn by her Case Guardian NSW Trustee & Guardian |
| FILE NUMBER: | NCC | 2636 | of | 2019 |
| APPEAL NUMBER: | EAA | 103 | of | 2020 |
| DATE DELIVERED: | 11 December 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 16 November 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 June 2020 |
| LOWER COURT MNC: | [2020] FCCA 1556 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Gould |
| SOLICITOR FOR THE APPELLANT: | Attwaters |
| COUNSEL FOR THE RESPONDENT: | Mr Duane |
| SOLICITOR FOR THE RESPONDENT: | Powe & White Family Lawyers |
Orders
The Application in an Appeal filed on 30 October 2020 is dismissed.
The appeal is allowed.
The orders made by a judge of the Federal Circuit Court of Australia on 15 June 2020 are set aside.
In lieu thereof, the Initiating Application filed on 22 August 2019 (as amended on 31 January 2020) is dismissed.
There be no order as to costs.
The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Radecki & Fairbairn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 103 of 2020
File Number: NCC 2636 of 2019
| Mr Radecki |
Appellant
And
| Ms Fairbairn by her Case Guardian NSW Trustee & Guardian |
Respondent
REASONS FOR JUDGMENT
Introduction
On 15 June 2020, a judge of the Federal Circuit Court of Australia made a declaration that the de facto relationship between Mr Radecki (“the appellant”) and Ms Fairbairn “had broken down by no later than 25 May 2018”. The appellant appeals that declaration and contends that, in all of the circumstances, the relationship had not broken down.
The appeal is opposed by the NSW Trustee & Guardian (“the Trustee”) who is the Case Guardian for Ms Fairbairn. The Trustee was appointed by the NSW Civil & Administrative Tribunal (“NCAT”) as the financial manager of the estate of Ms Fairbairn on 22 February 2018. The Public Guardian was appointed on 10 January 2018 to manage matters such as her accommodation and health care.
The orders for those appointments were made because Ms Fairbairn could no longer manage her affairs, having been diagnosed with moderate dementia in July 2017, and her children and the appellant were “in conflict as to how [Ms Fairbairn’s] needs should be met” (at [6]), including the financial arrangements to pay for Ms Fairbairn’s aged care facility costs.
The Trustee is of the view that a property at Town A (“the Town A property”), owned by Ms Fairbairn and used by her and the appellant as their home, and in which the appellant has continued to live, should be sold so as to pay to the aged care facility a refundable accommodation deposit (“RAD”) in the sum of $370,000. If such a deposit is not paid, a daily accommodation payment (“DAP”) is charged along with interest at 4.98 per cent of the RAD payable. The DAP is not refundable.
The appellant’s position is that he should be permitted to live in the Town A property and that instead of a RAD being paid, the cost of Ms Fairbairn’s care should be met by the payment of the DAP. The appellant first suggested that the DAP should be paid from Ms Fairbairn’s superannuation funds and when that was depleted (in approximately nine years), he would start making the payments himself. The Trustee did not agree and since June 2019, the appellant has paid the DAP from his own funds. The appellant wishes to continue to live in the Town A property.
The effect is that the DAP from when Ms Fairbairn went into the aged care facility in early 2018 until June 2019 (a period of at least 15 months) remains unpaid and accruing interest. Most likely it will be paid from the estate of Ms Fairbairn in due course.
In order to resolve the dispute as to the payment of the RAD, the Trustee commenced proceedings on behalf of Ms Fairbairn on 22 August 2019. It was contended that the de facto relationship between Ms Fairbairn and the appellant had broken down and that it was just and equitable that there be property settlement orders made pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”). Key amongst the orders sought by the Trustee was that Ms Fairbairn receive the Town A property which is owned by her, free of any claim by the appellant, so that it might be sold and the proceeds used to pay the RAD.
The matter was fixed for a preliminary hearing on 5 March 2020 to determine whether the de facto relationship between the appellant and Ms Fairbairn had broken down. Ms Fairbairn was not in a position to give evidence at that hearing.
The primary judge found that the appellant’s approach towards the financial affairs of him and Ms Fairbairn was incompatible with a continuing de facto relationship and that it had ended by no later than 25 May 2018, which was when the appellant proposed to the Trustee that Ms Fairbairn’s superannuation funds be used to pay the RAD in the first instance.
There is no doubt that the appellant and Ms Fairbairn were in a de facto relationship from about 2005 or 2006. It was a feature of that relationship that they kept their financial affairs separate. Not only is there no evidence that they mingled their finances but they also twice entered into written agreements (3 May 2010 and 9 December 2015), which made it plain that their property was to be kept separate. Ms Fairbairn owns the Town A property and the appellant owns two other properties.
In January 2016, Ms Fairbairn executed a new will. As with an earlier will that she had executed, her children were the primary beneficiaries but this time the appellant was granted six months to vacate the Town A property after her death.
Ms Fairbairn began experiencing increased difficulties with her health in mid‑2016. She experienced hallucinations, became depressed and had difficulties with her memory. On 31 January 2017, she was diagnosed with “dementia with clear Parkinsonian features and a shuffling gait” (at [65]). A month later, Ms Fairbairn was found to be eligible for a low level home care package.
In April 2017, the appellant went on a three month overseas holiday (which had been arranged the year before) and left Ms Fairbairn in the care of his daughter. Apparently due to an accidental overdose of medication, Ms Fairbairn’s daughter moved into the Town A property in May 2017 to continue to care for her instead of the appellant’s daughter.
On 22 June 2017, Ms Fairbairn’s general practitioner advised her children to enact the Enduring Powers of Attorney that they held, which had been granted long before any cognitive difficulties had emerged. They did so by taking control of their mother’s bank accounts and preventing her from having access to them.
A further health assessment conducted on 29 June 2017 showed that Ms Fairbairn’s condition had deteriorated sharply and that she qualified for full‑time placement into an aged care facility. Her treating specialist opined that, despite at times appearing “lucid and unaffected”, she had a lack of capacity to make decisions about her care or finances (at [85]). She was found to have moderate dementia.
The appellant returned from his overseas holiday on 30 June 2017. Ms Fairbairn’s daughter moved out of the Town A property at that time. Since then, the appellant has been in constant dispute with Ms Fairbairn’s children about her care and financial affairs which has led to several proceedings in NCAT.
On 18 July 2017, the appellant took Ms Fairbairn to Town H Courthouse where she executed a revocation of the Enduring Powers of Attorney given to her children and instead appointed Enduring Powers of Attorney in favour of the appellant and her brother. Those documents were revoked by NCAT in January 2018.
On 29 November 2017, whilst Ms Fairbairn was in hospital after a fall, the appellant arranged for a solicitor to attend on her to prepare a new will. The new will granted the appellant a life estate in the Town A property and Ms Fairbairn’s children were replaced as executors by her brother and sister-in-law. There are some obvious difficulties to be faced if that will is ever to be propounded.
Thereafter, the dispute as to the payment of Ms Fairbairn’s aged care facility costs escalated, at first between the appellant and Ms Fairbairn’s children, and then later, also the Trustee. It is not necessary to go into those details. As we have said, the appellant commenced paying the DAP in June 2019. Ms Fairbairn had been in the aged care facility for at least 15 months at that stage and it appears that the DAP for that period remains unpaid and accruing interest and will need to be paid at some stage. Fortunately, the lack of payment appears to have had no adverse effect on the care provided to Ms Fairbairn.
The primary judge found that “a core element of the parties’ relationship throughout was that they agreed to keep their assets strictly separate” and that “[a]t the very most, [Ms Fairbairn] was willing to let the [appellant] stay living at the [Town A] property for [six] months after her death” (at [153]).
His Honour found that having Ms Fairbairn execute the revocation and appointment documents in relation to her Enduring Powers of Attorney on 18 July 2017, and instructing a solicitor to prepare a new will for her on 29 November 2017, was “incompatible with the foundations of their relationship” (at [155]–[156]).
The primary judge said:
157.Having failed in NCAT concerning the powers of attorney documents, the [appellant’s] unwillingness to cooperate with [Ms Fairbairn’s] children to enable them to administer [Ms Fairbairn’s] affairs in 2017 / 2018 was specifically noted by NCAT, and resulted in [the Trustee] being appointed financial managers. This was not an outcome that [Ms Fairbairn] had ever sought or in my view envisaged. At a time when she was most vulnerable, [Ms Fairbairn’s] express wishes as to management of her estate were thwarted as a direct result of the [appellant’s] actions.
It is not clear what his Honour intended by the reference to Ms Fairbairn’s “express wishes”. Her last unequivocal wishes, as expressed in the will made in January 2016, were that the appellant should be able to live in the Town A property for six months after her death. That was the course that the appellant was determined to follow. On the other hand, if the “express wishes” being referred to were those of the Trustee, then they required the immediate sale of that property.
This led to the following conclusion:
158.The [appellant’s] subsequent and persistent refusal to comply with [the Trustee’s] determination that the [Town A] property be sold to pay a RAD, while himself neglecting to pay any of [Ms Fairbairn’s] care costs, depleted [Ms Fairbairn’s] estate and was incompatible with the ongoing existence of the de facto relationship. His proposal to [the Trustee] on 25 May 2018 that [Ms Fairbairn’s] super be used in the first instance to meet her costs, following which he would start contributing, was in my view confirmation that the de facto relationship had by that time broken down.
159.The [appellant’s] later proposal to [the Trustee] that he pay the DAP fees in the first instance and be reimbursed by [Ms Fairbairn’s] estate later, remained incompatible with the ongoing existence of the de facto relationship.
160.The [appellant’s] ongoing and deliberate frustration of [the Trustee’s] lawful administration of [Ms Fairbairn’s] financial affairs is also incompatible with the ongoing existence of the de facto relationship. [Ms Fairbairn’s] present accommodation in the aged care facility has a degree of financial tenuousness. This is only because the [appellant] will not permit [the Trustee] to sell the [Town A] property to clear her liabilities and give her financial security. She needs that security in her present vulnerable position. He owns a home of his own. If that was unsuitable, he could rent a property. In that sense, there is real force in the children’s submission to NCAT that the [appellant] is maintaining his financial independence while denying [Ms Fairbairn] hers.
161.Overall, in the circumstances of this particular relationship, the actions of the [appellant] referred to in paragraphs 154 – 160 herein, taken at a time when [Ms Fairbairn] was labouring under an incapacity, were unequivocally indicative of and consistent only with, the cessation of the de facto relationship as it previously existed. Whether the [appellant’s] subjective intentions at the time he took those actions, it is my view that the law should objectively impute to him the requisite intention to separate. His intentions have been communicated to [the Trustee] on [Ms Fairbairn’s] behalf, and also to [Ms Fairbairn’s] children.
(Emphasis in original)
The Appeal
The appeal, as argued, devolved into the following three questions:
·Could the Court objectively impute to the appellant an intention to separate?
·Did the primary judge find, by inference from the facts before his Honour, that the appellant intended to separate from Ms Fairbairn and acted on that intention, and if so, was such a finding open on the evidence?
·Did the evidence support a finding that, in any event, the appellant and Ms Fairbairn were not in a de facto relationship on 25 May 2018?
A de facto relationship exists where a Court finds that the parties were “a couple living together on a genuine domestic basis” (s 4AA(1)(c) of the Act), which is to be decided by reference to the matters set out in s 4AA(2) of the Act, which are as follows:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i) the reputation and public aspects of the relationship.
In addition, the Court “is entitled to have regard to such matters… as may seem appropriate to the court in the circumstances of case” (s 4AA(4) of the Act).
In a passage which has been frequently quoted and applied when determining the existence of a de facto relationship (see, for example, Sinclair & Whittaker (2013) FLC 93-551 (“Sinclair & Whittaker”) at [55] and Cadman & Hallett (2014) FLC 93-603 (“Cadman”) at [48]), albeit in a different legislative context, Fitzgerald J said in Lynam v Director-General of Social Security (1984) FLC 91‑577 at 79,663:
Financial arrangements cannot be taken in isolation and considered of particular importance in determining the nature of relationship. Their materiality, like each of the other elements of the relationship, stems from the impact which they have as part of an overall situation. Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
Although not expressly mentioned in s 4AA(2) of the Act, an intention to enter into a de facto relationship or to end one is powerful evidence to be taken into account under s 4AA(4) of Act, in determining whether such a relationship exists or has ended. Whilst evidence of such intention is not required and, in many cases, is not present, where such an intention can be identified, it can be telling.
In Hibberson v George (1989) 12 Fam LR 725 at 740, Mahoney JA said in relation to the De Facto Relationships Act 1984 (NSW):
… The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to “live together” with the other and in that sense keeps apart, the relationship ceases…
After referring to this passage in S v B(No 2) (2004) 32 Fam LR 429, Dutney J said:
48.… [A] de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. It does not seem to me that it is necessary to communicate this intention to the other party providing the party that is desirous of ending the relationship acts on his or her decision…
Thus, for a person intentionally to end a de facto relationship, that person must both make the decision to separate and clearly act on it. See the explanation of these propositions in Clarence & Crisp (2016) FLC 93-728 (“Clarence”) at [45]–[51].
For an example of a matter where an intention to separate played a significant role, see Cadman, an appeal from Cadman & Hallett [2013] FamCA 819.
Evidence of an intention to separate is of course not the only means by which it can be established that a de facto relationship has broken down. Some relationships simply peter out so that the concatenation of relevant factors that pointed to a de facto relationship no longer exist. Thus, where a de facto relationship has existed, an analysis of “the nature and character” of that relationship and what had changed to the extent that the relationship no longer existed is required (Herford & Berke(No 2) (2019) FLC 93-919 at [25]). The identification of the impact of the changes on the existence of the de facto relationship is key.
As the Full Court said in Clarence:
51.Ultimately, however, we consider the real test (since it conforms with the statute as a matter of logic) was that identified by Murphy JA earlier in H v P [[2011] WASCA 78]:
56.… a de facto relationship is inherently terminable at any time, and continues to exist only insofar as the indicia which give the relationship its … character continue to exist.
52.Looked at in this way, the task of determining whether a relationship has ended at or before a particular date is precisely the same task that must be performed when determining whether a de facto relationship exists in the first place – i.e. by reference to the indicia laid down in the legislation…
In this matter, the Trustee did not seek to support the findings of the primary judge but submitted that if his Honour was wrong, nonetheless the finding that the de facto relationship had broken down was correct when regard was had to the changes that had occurred. The Trustee did not submit that it, on behalf of Ms Fairbairn, had formed an intention to separate. That was correct. We respectfully adopt the following passage from Dessau J in Jennings v Jennings (1997) FLC 92-773 (“Jennings”) at 84,535, where her Honour said:
… It strikes me as a perverse proposition that an administrator, appointed to represent a person who through disability is unable to organise his own affairs, could simply “reach a decision” that the person’s marriage has ended. It is not that the administrator points to objective facts nor that it disbelieves the wife’s version to the contrary. It has simply “reached a decision”. In my view, the administrator is empowered to handle the legal and financial affairs of a party but cannot possibly be empowered to handle “the affairs of the heart” or the most intimate aspects of the represented person’s mind and soul.
With these precepts in mind, we turn to the three questions raised by the appeal.
Could the Court objectively impute to the appellant an intention to separate?
The Trustee did not contend that an objective intention could be imputed to the appellant or that any authority supported taking such a course. We ourselves are unable to find any.
A person’s intention is a fact and as such it “is as much the subject of evidence as the state of his digestion” (Hodge M Malek, Phipson on Evidence (Thomson Reuters, 19th edition, 2018)). As with any other fact, that intention may be inferred from other facts that have been established and it may require an evaluation of all of the evidence so as to determine the actual intention of the person. This is quite different to imputing or imposing an intention on a person which they did not have, which is, in effect, to create a fact that in reality does not exist. Such a course is not permissible and we consider that his Honour erred in doing so.
Did the primary judge find, by inference from the facts before his Honour, that the appellant intended to separate from Ms Fairbairn and acted on that intention, and if so, was such a finding open on the evidence?
The Trustee submitted that the reference to imputing an objective intention to the appellant was simply an infelicitous use of language by the primary judge and that, in fact, his Honour followed the course that we have just described, namely, to infer the actual intention of the appellant from the evidence.
We do not agree. Whilst the first sentence at [161] is consistent with such a course, it must be read in the context of the whole paragraph (outlined above at [24]). The next sentence, which refers to the imputation of an objective intention, commences with the words “[w]hether the [appellant’s] subjective intentions at the time he took those actions” (emphasis in original). We wonder if his Honour had intended to say “whatever” instead of “whether”, but either way, it is clear that the primary judge put to one side the appellant’s actual intentions (his “subjective” intentions) and overrode them with the imputed intentions.
The primary judge based the imputed intentions on the following:
·the appellant suggested that Ms Fairbairn’s superannuation funds be used to pay the DAP (at [158]);
·the appellant had Ms Fairbairn sign a revocation document and execute new appointment documents in relation to her Enduring Powers of Attorney (at [154]–[155]);
·the appellant had a new will prepared for Ms Fairbairn which was more favourable to him (at [156]);
·the appellant failed to cooperate with requests to sell the Town A property to pay the RAD (at [158] and [160]);
·the appellant at one stage proposed to pay the DAP himself and be reimbursed by Ms Fairbairn’s estate later ([159]); and
·the appellant neglected to pay the costs of Ms Fairbairn’s care (at [158]) (his Honour failed to recall that the appellant commenced doing so from his own funds in June 2019 and that nevertheless any failure to pay did not affect her care but simply threw that cost into her estate in due course).
We do not see why the appellant’s proposal that Ms Fairbairn’s superannuation funds pay the DAP is incompatible with a continuing de facto relationship. Clearly, provision had to be made for her care and one of the purposes of superannuation is to provide funds to care for a person as they age. It is also a legitimate consideration for a couple, when one goes into care, to consider whether their home should be sold to provide that care, or whether the home should be retained for the benefit of the person not in care and instead another source of funds, such as superannuation, be used. The same can be said about the appellant’s suggestion that he pay the DAP himself and be reimbursed later.
The primary judge took the view that the appellant’s failure to cooperate in the sale of the Town A property to pay a RAD was not in Ms Fairbairn’s interests. Such a failure, however, did not affect the care given to Ms Fairbairn. Rather, it meant that the DAP was then payable, which was not refundable and accrued with interest, and it would ultimately be paid by her estate.
The primary judge did say that Ms Fairbairn’s care has “a degree of financial tenuousness” and that she needs “security in her present vulnerable position” (at [160]) but did not identify the risk. The appellant was paying the DAP and if for some reason he ceased, Ms Fairbairn’s superannuation funds remained a source of payment. The Trustee could also seek an order for the sale of the Town A property from NCAT.
The point, however, is not to determine the best source of funding for Ms Fairbairn’s care, as to which minds might differ, but to look to see whether there is evidence that the de facto relationship between her and the appellant had broken down.
As far as can be determined, Ms Fairbairn wished that the appellant should be able to live in their home until six months after her death, as is evidenced by her will made in January 2016 (there appears to be no suggestion that this will was affected by any lack of capacity). More importantly, the sale or not of the Town A property did not bear on what the primary judge regarded as the core feature of the de facto relationship because either way Ms Fairbairn would remain the owner of it or its proceeds of sale.
Having regard to these matters, not selling the Town A property is at least as consistent with a continuing de facto relationship (with both parties to it being able to use the family home as long as they can), as it is inconsistent with it.
The second and third points may identify bad behaviour on the part of the appellant, but, sadly, poor behaviour is all too often a hallmark of a relationship. No immediate change in Ms Fairbairn’s finances was effected by those documents and the only long term change was to extend the provision in her will for the appellant to live in the Town A property from six months to a life estate. Such a provision is not, in our opinion, fundamentally incompatible with a separation of assets and could easily be explained by a desire for both parties to the relationship to remain living in what had been their home for many years but not allowing any interest beyond that.
The desire expressed by Ms Fairbairn for the appellant to be permitted to live in the Town A property for six months after her death is evidence of such an intention.
Finally, we consider that his Honour fell into the difficulty identified in Sinclair & Whittaker by taking one consideration (the supposed intention of the parties to keep their assets separate) to be determinative at the expense of all other considerations. The primary judge did not take into account the fact that from June 2019, the appellant had paid the DAP from his own resources and visited Ms Fairbairn often and regularly. These factors are entirely consistent with a continuing de facto relationship.
It is well recognised that the day to day nature of a relationship may change dramatically without changing its fundamental nature, especially “in the circumstances of parties who have formed no intent to separate; where one is suffering illness and is hospitalised and where the other continues to visit and partake in his care to the extent that she is able” (Jennings at 84,538). Therefore, the fact that Ms Fairbairn’s mental capacity has greatly diminished and she is now living in an aged care facility does not, of itself, demonstrate that the relationship had broken down. Consistently with authority (Stanford v Stanford (2012) 247 CLR 108 at [42]–[46]), the Trustee accepted that more must be demonstrated.
What then was the change that demonstrated that the existing de facto relationship had broken down? The only changes that were pointed to by the Trustee were those set out above at [42]. We have demonstrated that there is no substance in them. At best, they demonstrate that a dispute exists between the appellant on the one hand, and the Trustee and Ms Fairbairn’s children on the other, as to how best manage Ms Fairbairn’s affairs.
It follows that a finding that the appellant had the intention to end the de facto relationship was not available on the evidence.
Did the evidence support a finding that, in any event, the appellant and Ms Fairbairn were no longer in a de facto relationship on 25 May 2018?
It is apparent from what we have written that we can see no relevant change of substance in the de facto relationship from 2005 or 2006 to date. As we have explained, the change in Ms Fairbairn’s mental state and her moving to live in an aged care facility were not such changes. The relationship has continued as best it could despite the ill health of Ms Fairbairn and a most unfortunate dispute as to how her assets should be marshalled to pay for her care. There is no basis for concluding that the de facto relationship has ended.
Conclusion and costs
It follows therefore that the appeal should be allowed, the orders of the primary judge set aside and in lieu thereof there should be an order dismissing the Initiating Application filed on 22 August 2019 (as amended on 31 January 2020).
In these circumstances, it is not necessary to consider the appellant’s Application in an Appeal to adduce further evidence filed on 30 October 2020 and it will be dismissed.
As no order for costs was sought if the appeal was allowed, the appellant should be granted a costs certificate under s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) for the appeal.
The Trustee, a state agency, is not “a person suing… on behalf of the Commonwealth, of any State or of the Northern Territory” (s 14(1)(d) of the Costs Act) but rather is suing on behalf of Ms Fairbairn. It is therefore entitled to seek a costs certificate. We decline to grant one, however, because it was the Trustee’s contention before the primary judge and us that the de facto relationship had broken down. It was that contention which was erroneously accepted by his Honour that led to the appeal.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 11 December 2020.
Associate:
Date: 11 December 2020
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