O’Sullivan Legal is here to explain Fairbairn v Radecki [2022] HCA 18 to you.

In May 2022, the High Court made a landmark decision in the realm of de facto relationships.
Our team have taken a good look at this case for you and break it down in a way that only the top family law firm in Sydney should.

Our top family lawyers found that on reviewing the High Court judgement that despite not being defined in the Family Law Act 1975 (Cth), the Court found that the respondents’ actions towards the appellant were consistent with wanting the relationship to end, thus amounting to a ‘breakdown’.

Fairbairn v Radecki – The Background

Our best family lawyers read that in early 2005/late 2006, the appellant and respondent commenced a de facto relationship residing in the appellant’s home, with the parties agreeing to keep their assets separate. As a result of the appellant losing capacity to make long-term decisions, NCAT appointed a NSW Trustee and Guardian to make health and welfare decisions on the appellant’s behalf in early 2018.

However, problems sparked in March 2018, when the respondent opposed the Trustee’s decision to move the appellant into an aged care home, requiring her to sell her home to fund her care.

Our top family lawyers read that in while at first instance the Court sided with the Trustee, the Full Court disagreed on appeal. As a result of the Full Court’s decision, the Trustee appealed to the High Court where the ruling seemed to come full circle. Siding with the primary judge, the High Court was not impressed with the respondents’ actions.

Fairbairn v Radecki – The Appeal

On appeal, as noted by our top family lawyers, the Trustee relied on two key events to prove that the respondent intended to breakdown the de facto relationship.

First, the respondent manipulated the appellant into believing her children (who had enduring power of attorney) were going to take her money, sell her home and put her into an institution. Immediately following this, the respondent took the appellant to the Courthouse where she revoked her enduring power of attorney and appointed the respondent’s brother as enduring power of attorney instead.

Second, while in hospital following a fall, and with the respondent present, the appellant arranged for her solicitor to come and update her will. The new will was more favourable to the respondent than the previous will.

Our best family lawyers noted that while the respondent proposed that the appellants superannuation be accessed to pay for her care in the aged care home and proposed to pay any additional funds from his own contributions (to be later reimbursed from the appellant’s estate), the Trustee refused this proposal on the grounds that the respondent was merely concerned with his own financial interests, rather than the appellant’s.

The High Court agreed, and the appeal was subsequently allowed.

Fairbairn v Radecki – Verdict & Summation

In summary, our best family lawyers noted that in refusing to make ‘necessary or desirable adjustments’ in favour of his spouse, the Court ruled against the respondent, holding that the relationship had in fact broken down. While an explicit definition of ‘breakdown’ is not found in the Act, Fairbairn v Radecki demonstrates a clear message: acting against the interests of your de facto partner constitutes a relationship breakdown in the eyes of the Court.

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