RADECKI & FAIRBAIRN

Case [2020] FamCAFC 307

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)
Family Law Act 1975 (Cth) ss 4AA, 90SM
Federal Proceedings (Costs) Act 1981 (Cth) ss 9, 14

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

  1. The Application in an Appeal filed on 30 October 2020 is dismissed.

  2. The appeal is allowed.

  3. The orders made by a judge of the Federal Circuit Court of Australia on 15 June 2020 are set aside.

  4. In lieu thereof, the Initiating Application filed on 22 August 2019 (as amended on 31 January 2020) is dismissed.

  5. There be no order as to costs.

  6. 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…

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AGLC
RADECKI & FAIRBAIRN [2020] FamCAFC 307
Case
[2020] FamCAFC 307
Decision Date

CaseChat Overview and Summary

The case involves Radecki and Fairbairn, where the appellant sought to challenge a decision made by the Federal Circuit Court of Australia. The primary dispute centred around the payment of de facto wife’s aged care facility costs in the context of their de facto relationship, which had allegedly broken down. The NSW Trustee & Guardian intervened in the matter, and the appellant contested the way in which these costs should be managed.

The court was tasked with determining whether a de facto relationship had indeed broken down and whether the appellant had intended to separate from the respondent. This included examining if the primary judge's imputation of an intention to separate was justified based on the evidence presented. The court had to assess if there had been a material change in the nature of the de facto relationship from its inception and whether such changes warranted a finding that the relationship had irretrievably broken down.

Upon review, the court found that the primary judge's imputation of an intention to separate was not supported by the evidence. There was no significant alteration in the nature of the de facto relationship that would substantiate a finding of a relationship breakdown. Consequently, the appeal was allowed, and the orders made by the Federal Circuit Court were set aside. The initiating application was dismissed, and the appellant was granted a costs certificate for the appeal.

Orders

Orders of the court

1.

The Application in an Appeal filed on 30 October 2020 is dismissed.

2.

The appeal is allowed.

3.

The orders made by a judge of the Federal Circuit Court of Australia on 15 June 2020 are set aside.

4.

In lieu thereof, the Initiating Application filed on 22 August 2019 (as amended on 31 January 2020) is dismissed.

5.

There be no order as to costs.

6.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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