Fairbairn v. Radecki

Lower Court Judgment

11/12/2020 Family Court of Australia (Ainsley-Wallace, Ryan & Aldridge JJ)

[2020] FamCAFC 307

Catchwords

Family law – De-facto relationship – Breakdown – Proper test for determination of breakdown of de-facto relationship – Where s 90SM of Family Law Act 1975 (Cth) provided, in property settlement proceedings after breakdown of de-facto relationship, court may make order altering interest of parties to de-facto relationship in property – Where, in 2005 or 2006, applicant and respondent entered into de-facto relationship – Where basis of relationship living together on domestic basis with clear understanding as to separation of each other’s financial affairs and property interests – Where, in 2015, applicant began to suffer from rapid cognitive decline – Where applicant incapable of managing own affairs and, in 2018, New South Wales Trustee & Guardian appointed to act for applicant – Where Public Guardian placed applicant into aged care facility – Where respondent did not provide financial support for applicant, continued to reside in applicant’s property and prevented Trustee from selling applicant’s property – Where Trustee commenced proceedings against respondent in Federal Circuit Court seeking order for property settlement pursuant to s 90SM, claiming applicant and respondent’s de-facto relationship had broken down – Where primary judge declared de-facto relationship had broken down no later than 25 May 2018 – Where respondent successfully appealed to Full Family Court – Whether basis of applicant and respondent’s de-facto relationship no longer existed – Whether de-facto relationship had broken down.