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Property – De facto thresholds – “Breakdown” of a de facto relationship is the trigger point for jurisdiction – Aggregate of circumstances supported conclusion that de facto relationship had broken down

In Fairbairn v Radecki [2022] HCA 18 (11 May 2022) the High Court (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) heard an appeal from a decision of the Full Court of the Family Court of Australia in Radecki & Fairbairn [2020] FamCAFC 307 (summarised at our archived case notes – property under “de facto relationship, thresholds etc”) where the de facto wife was in care.

The New South Wales Trustee & Guardian (“Trustee”) as case guardian for the de facto wife had sought orders for the sale of a home (in which the de facto husband lived) so as to pay for the wife’s care accommodation. The de facto husband argued that the Court lacked jurisdiction as the parties had not separated. The trial judge found that the relationship had broken down by no later than 25 May 2018. The Full Court found that the trial judge erred by imputing the de facto wife’s intention to separate rather than assessing the indicia laid down under the Family Law Act 1975.

The High Court held (from [6]):

“The Act contains no exhaustive definition of the term ‘breakdown’, save that s 4 of the Act relevantly provides that in relation to a de facto relationship, it ‘does not include a breakdown of the relationship by reason of death’ …

( … )

[21] … The primary judge found that the respondent’s conduct during the demise of the appellant’s mental capacity was inconsistent with a ‘fundamental premise’ of their relationship, namely the strict separation of their assets. That inconsistent conduct, all of which occurred while the appellant was ‘labouring under an incapacity’, comprised: the entry into a new enduring power of attorney that ‘favoured [the respondent’s] rights over hers’; the respondent instructing solicitors to prepare an updated will ‘on terms vastly more favourable to him’; the respondent’s ‘unwillingness to cooperate’ with the appellant’s children in the administration of her affairs; the respondent’s ‘persistent’ refusal to permit the Trustee to sell the home … while ‘neglecting to pay any of the [appellant’s] care costs’, thus depleting her estate; the respondent’s proposal that the appellant’s ‘super be used in the first instance to meet her costs’, and then his subsequent proposal that ‘he pay the … fees in the first instance and be reimbursed by the [appellant’s] estate’; and the respondent’s ‘ongoing and deliberate frustration’ of the Trustee’s lawful administration of the appellant’s financial affairs. The primary judge found that this conduct was ‘unequivocally indicative of and consistent only with … the cessation of the de facto relationship as it previously existed’. ( … )

( … )

[23] ( … ) The Full Court reviewed the conduct identified by the primary judge. None of the conduct was found to be fundamentally inconsistent with a continuing de facto relationship … ”

The High Court continued (from [25]):

“The appellant submitted that the phrase ‘living together’ in s4AA(1)(c) requires cohabitation at some place and in some way, and that this is an irreducible minimum of what a de facto relationship, as defined, must continuously display. A permanent cessation of cohabitation, whether voluntarily undertaken or involuntarily imposed, and for whatever reason, was said to result, in every case, in a de facto relationship ending.

( … )

[27] The appellant’s alternative argument was that the de facto relationship between the appellant and the respondent had broken down by no later than 25 May 2018 by reference to the circumstances listed in s 4AA(2)In this context, the appellant submitted that ‘breakdown’ does not necessarily mean ‘end’.

( … )

[29] A de facto relationship will have broken down when, having regard to all the circumstances, the parties no longer ‘have a relationship as a couple living together on a genuine domestic basis’. Such a conclusion is not precluded by the presence of an ongoing relationship of some sort. …

[30] … It is the ‘breakdown’ or ‘end’ of a de facto relationship that is the trigger point for the Federal Circuit and Family Court to be seized of jurisdiction to make a property settlement order under s 90SM of the Act. It would make no sense for such a jurisdiction to arise before a de facto relationship had ended …

( … )

The need for cohabitation

[32] The appellant’s primary argument that the parties’ de facto relationship had broken down when the appellant was placed into an aged care facility such that the parties were no longer physically living together must be rejected. It is contrary to the text of s 4AA and to statutory context and purpose to which reference has been made. It is also contrary to real-world considerations. It would be productive of injustice if two people who live apart (including for reasons of health) were incapable of remaining in a de facto relationship.

[33]  … [C]ohabitation of a residence or residences is not a necessary feature of ‘living together’. That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world. Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship in the sense required by s 4AA.

[34] The fact that here the appellant was placed into an aged care facility may be relevant to the existence or breakdown of a de facto relationship under the Act, but it could not, of itself, be determinative of that issue. The same observation applies to the decline in the appellant’s cognitive ability.

( … )

[39] The language of s 4AA of the Act and its reference to ‘living together’ requires no different approach to determining whether a relationship exists of the kind defined. ‘Living together’ … should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. ( … )

( … )

[46] Whilst there had been a degree of mutual commitment to a shared life, that commitment ceased when the respondent refused to make the ‘necessary or desirable adjustments’ in support of the appellant and, by his conduct, acted contrary to her needs. ( … )

[47] In aggregate, these circumstances support the conclusion that there had been a breakdown in the parties’ de facto relationship by no later than 25 May 2018. With respect to the Full Court below, this was more than just a dispute between the respondent – a man found to have behaved poorly – and the Trustee and the appellant’s children.”

[Footnotes omitted]

The appeal was allowed, with the appeal to the Full Court dismissed.


Children – No time, contact or communication – Father’s paraphilia and associated behaviours posed risk to children – No requirement for mother to keep father informed of decisions made exercising sole parental responsibility

Property – Court erred in considering husband’s defective disclosure when assessing contributions – Including capitalised value of pension in asset pool and considering pension under s 75(2) is “double dipping”

Property – Leave to proceed requires a prima facie case, not a “real probability of success” – Possibility, not probability that legal fees would exceed the quantum of relief sought

Property – Interim orders to sell the former matrimonial home are not final orders solely because they rendered the wife’s final application otiose – Wife retained an ability to purchase the home

Children – Reversal of care set aside where the assumptions of a single expert were inconsistent with the evidence

Children – Artificial conception procedure – Respondent lacked standing to bring a parenting application where she and the deceased mother were not in a de facto relationship and where her lack of relationship with the children meant that she was not a “person concerned with the care, welfare or development of the children”