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Property – ‘breakdown’ of de facto relationship the trigger point for jurisdiction…

…aggregate of circumstances supported conclusion that 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.

The New South Wales Trustee & Guardian, as case guardian for the de facto wife, sought orders for sale of a home to pay the wife’s care accommodation. The de facto husband argued the court lacked jurisdiction as the parties had not separated.

While the trial judge agreed; the Full Court found that decision contained error as it imputed an intention to separate rather than assessing indicia.

The High Court held (from [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’. …

[30] … It is the ‘breakdown’ or ‘end’ of a de facto relationship that is the trigger point for the … court to be seized of jurisdiction to make a property settlement order … It would make no sense for … jurisdiction to arise before a de facto relationship had ended …

(…)

[33]  … [C]ohabitation of a residence … is not a necessary feature of ‘living together’. … Two people … may not reside in the same residence, but nonetheless be in a de facto relationship …

[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 … but it could not … be determinative of that issue. …

(…)

[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 … 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 …”

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

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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