Court decision

‘Breakdown’ doesn’t always mean ‘break up’– determining when a de facto relationship has broken down and an examination of the High Court’s decision in Fairbairn v Radecki

By Fraser Bax / 08 June 2022
4 min.
Worthwhile read for: Married couples, blended families, de facto couples, recently separated individuals, family law practitioners

Partner Fraser Bax and Solicitor Hamish Mulcahy examine a recent High Court Decision in Fairbarin v Radecki, highlighting the multitude of factors that may be relevant to the existence and breakdown of a de facto relationship.

Though de facto relationships and marriages continue to grow ever closer in terms of their legal status, there remains no substitute for the certainty that a marriage certificate and divorce order provide. Often, the nature of a relationship is not clear between the parties themselves, and it can be very difficult for the Court to determine what is and is not, a de facto relationship and when this relationship ceases to exist. 

The Court has a wide discretion to determine whether a de facto relationship exists. The foundational provision is contained within section 4AA of the Family Law Act 1975 (Cth) and asks whether, having regard to all the circumstances of a relationship, the parties ‘have a relationship as a couple living together on a genuine domestic basis.

‘Living together’ does not necessarily mean cohabitation, and the Court may have regard to any matter as may seem appropriate in the circumstances of the case. This discretion allows for a broad spectrum of relationships to be dealt with on the basis of their own, often idiosyncratic, particularities. 

Recent decision in Fairbairn v Radecki [2022] HCA 18

In the recent case of Fairbairn v Radecki, all seven judges unanimously allowed an appeal from the Full Court of the Family Court of Australia. The appeal centred around the meaning of ‘breakdown of a de facto relationship’ for the purposes of making property settlement orders and whether there had been such a breakdown in the parties’ relationship. 

Ultimately, the Court found that the relationship had broken down. However, this breakdown was not caused by the appellant’s rapid cognitive decline and separation from the respondent, due to her move to an aged care facility. Rather, it was the respondent’s ‘persistent refusal’ to make ‘necessary or desirable adjustments’ in this situation (adjustments which might otherwise have evidenced an ongoing relationship). 

Importantly in this case, the parties’ decision to keep their assets strictly separate was an ‘essential feature’ of their relationship from its commencement in 2005. However, by 2017, while the appellant was in cognitive decline, the respondent began to act contrary to this arrangement. He took steps to secure an enduring power of attorney, superseding the appellant’s children and giving him a large degree of control over the appellant’s home and other assets. He obtained a revised will from the appellant (while she was hospitalised) which was in his favour and his conduct led to the NSW Civil and Administrative Tribunal and the NSW Trustee and Guardian intervening, in respect of the appellant’s interests. Moreover, the respondent continued to reside in the appellant’s home rent free, despite owning two properties of his own and he made only ‘parsimonious’ attempts to contribute to the costs of the appellant’s care. 

The increased financial interdependence between the parties as a result of the respondent’s conduct was ultimately a factor counting against the existence of a de facto relationship. This is because the method by which this interdependence was achieved eroded the parties’ mutual commitment to a shared life, by way of the respondent’s refusal to make ‘necessary or desirable’ adjustments in the appellant’s favour, and by acting contrary to her needs. 

This case is important in highlighting the multitude of factors that may be relevant to the existence and breakdown of a de facto relationship. Importantly, it demonstrates that a mutual commitment to a shared life does not necessarily require cohabitation or financial interdependence, and indeed these factors may weigh against the existence of a de facto relationship where a party does not act in the other party’s interests.  

The HopgoodGanim Family and Relationship law team assists with all matters arising from the breakdown of de facto relationships. If this is a relevant consideration for you, please contact our experienced Family and Relationship law team for advice.

Fraser Bax
Fraser is a Partner in our Family and Relationship Law practice.

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