Are you still in a de facto relationship if you’re not living together

Fairbairn v Radecki [2022] HCA 18

The 2022 High Court decision of Fairbairn v Radecki [2022] HCA 18 considers the meaning of “breakdown of a de facto relationship” as per s90SM of the Family Law act 1975.

The parties to the proceedings commenced a relationship in 2005. In 2010, they entered into a formal agreement to keep their assets separate, including that the de faction wife’s home was to remain her property. This was considered to be a fundamental feature of the parties’ relationship.

By mid-2017, the de factor wife was diagnosed with dementia. On the advice of her doctor, she executed and enduring power of attorney in favour of her children from a previous relationship. Shortly after, notwithstanding the wife’s diminished capacity, the de facto husband encouraged the wife to revoke the existing power of attorney, and a new power of attorney was made in favour of him and the wife’s brother. The husband also arranged the wife to execute a new will that was more favourable to him than the wife’s previous will.

In 2018, the NSW Civil and Administrative Tribunal (‘NCAT’) appointed the NSW Trustee and Guardian (‘the Trustee’) as the de facto wife’s guardian and financial manager. NCAT also revoked the power of attorney in favour of the de facto husband.

In March 2018, the wife was moved into an aged care home. The Trustee sought to sell the de facto wife’s home to cover the costs of her ongoing care, however this was opposed by the de facto husband. The Trustee subsequently made an application to the Federal Circuit Court of Australia (as it was then known) seeking Orders for a property settlement.

The primary judge held that the parties’ de facto relationship had broken down by no later than 25 May 2018. The Court found that the de facto husband’s conduct during the demise of the wife’s mental state, was inconsistent with a “fundamental premise” of their relationship, being the strict separation of assets.

The de facto husband appealed the primary decision to the Full Court of the Family Court of Australia. The Full Court overturned the primary Judge’s decision, finding that there was no breakdown of the de facto  as the de facto husband’s conduct was not fundamentally inconsistent with a continuing de facto relationship.

The Trustee (on behalf of the de facto wife) appealed the Full Court’s decision, to the High Court. The Trustee attempted to argue that the parties’ relationship had broken down when the wife moved into an aged care home, arguing that de facto relationships break down when parties to the de facto relationship stop living together. This was rejected by the High Court. The Court held that the term “living together” means sharing a life together as a couple and must be “construed to take account of the many various ways in which two people may share their lives together in the modern world” [33].

Notwithstanding this, the High Court agreed with the primary judge’s finding that where one party to a de facto relationship acts fundamentally contrary to the interests of the other party in relation to the property of the couple, it is possible to conclude that the mutual commitment to a shared life has ended.

The Court noted that keeping their assets separate from one another was an “essential feature” of the parties’ relationship. By 2017, the de facto husband began to act as if he were no longer bound by this agreement. On this basis, the Court upheld the primary judge’s finding that the de facto relationship had broken down by no later than 25 May 2018.

Family law is complex and you should seek specialist advice if you, or a family member, find yourselves in a situation where you may benefit from advice about your entitlements, rights or responsibilities.

If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.

Author: Ellen Russell

Why can’t we be friends? – The necessity of judicial impartiality in family law

In the usual course, practitioners who excel in their application of the law and in advocating for their client’s interests quite often are the ones who are appointed later in their careers as judges. In what is now known as the Federal Circuit and Family Court of Australia (the Court), judges have often spent years working as barristers, requiring them to have close and positive relationships with members of the legal profession. In the highly specialised field of family law, this may mean those practitioners who were once colleagues may find themselves appearing in front of judges that are well known to them, and who they may consider to be friends.

Some practitioners may hold these friendships out as a benefit to clients. The High Court of Australia has sought to temper this, with the recent case of Charisteas v Charisteas [2021] HCA 29 strongly warning practitioners that contact with judges during proceedings is not on except in “the most exceptional of cases”.

In the long running case of Charisteas v Charisteas, the High Court set aside certain property orders made by the Trial Judge on the basis of apprehended bias. The difference of apprehended bias, versus actual bias, is an important distinction. What this means is that there were no allegations that the Judge engaged in behaviour or conduct that was prejudicial against one party over another. Rather, it means that a normal, everyday person (known as the “fair-minded lay observer”), may have perceived the judge to be biased.   

In this particular case, the circumstances involve the Trial Judge and the barrister for the Wife, who during the course of the proceedings:

1. Met for “drink or coffee” on no less than four occasions; and

2. Spoke on the telephone; and

3. Exchanged text messages during the trial, pausing for submissions, but continuing again before judgment had issued.

The barrister for the Wife failed to disclose the relationship, or the communications to the lawyers for the Husband or their barrister. Instead, the lawyers for the Husband found out through “gossip”.

It was in this context that the High Court found that the “fair-minded lay observer” would likely have thought the Trial Judge’s impartiality was compromised. The basis for this perception was the communications that were not disclosed, and the meetings on several occasions. The Husband successfully appealed to the High Court and the Wife was ordered to pay his costs along with some of the orders being set aside.

The important takeaway from Charisteas v Charisteas is that there is no excuse for communicating improperly with the Court. All communications, ideally should:

1. Include all other parties either in writing or in their presence;

2. Be agreed, down to the wording, prior to contacting the Court;

3. Be proper with all relevant parties, from the judge down to the Court registry staff;

4. Be mindful and courteous up to the time judgment issues.

At any stage of litigation, the importance of judicial impartiality cannot be understated. It is a confusing and sometimes misunderstood element of going to Court. It may help you better understand judicial impartiality, and its impact on your Court proceedings, by getting advice tailored to your circumstances. If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.