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NSW Trustee and Guardian ‘extremely proud’ of High Court decision
The High Court recently handed down its decision in Fairburn v Radecki [2022] HCA 18, which considered whether a de facto relationship between two parties had broken down, and, if so, by what point.
Jerome Doraisamy
The facts of the case, as outlined by the seven justices of the court, were that the appellant and respondent were in a de facto relationship in which they had agreed to keep their assets “strictly separate”, but lived in the appellant’s home.
The High Court looked into whether the de facto relationship was intact, which could void the sale of the home. The court considered factors including whether the two parties occupied separate bedrooms, whether the parties kept their assets separate and whether his conduct justified the intervention of NCAT and the appointment of a trustee.
The High Court said that “while there may be 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”.
In a previous report on the case, Lawyers Weekly spoke with Bartier Perry partner Alicia Toberty, who confirmed that cohabitation is no longer an essential feature of an ongoing de facto relationship.
Ms Toberty said that “it suggests that de-facto relationships can endure even when the parties do not live together, either voluntarily or involuntarily, if there remains a commitment to a shared life together”.
“Significantly, the case suggests that a breakdown occurs when one party refuses to make the ‘necessary or desirable adjustments’ to support the interests of their partner, particularly when their conduct is contrary to their partner’s needs,” she said.
The NSW Civil and Administrative Tribunal (NCAT) had appointed the NSW Trustee & Guardian as Mrs Fairburn’s financial manager.
In a statement, acting chief executive Megan Osborne to the NSW Trustee and Guardian stated that, “in our role as financial manager, our responsibility is to make decisions that support the best outcomes for our customers, uphold their rights and ensure we are making decisions that are in their best interests”.
Ms Osborne said that “taking this matter to the High Court was a fight for Mrs Fairborn’s rights, financial stability and dignity. We are extremely proud of the decision. This outcome has set monumental precedence for anyone who does not have capacity to make decisions for themselves.”
Jerome Doraisamy
Jerome Doraisamy is the editor of Lawyers Weekly. A former lawyer, he has worked at Momentum Media as a journalist on Lawyers Weekly since February 2018, and has served as editor since March 2022. He is also the host of all five shows under The Lawyers Weekly Podcast Network, and has overseen the brand's audio medium growth from 4,000 downloads per month to over 60,000 downloads per month, making The Lawyers Weekly Show the most popular industry-specific podcast in Australia. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of Minds Count.
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