FAMILY LAW CASE NOTES
Family Law Case Notes CRAIG NICHOL & KELEIGH ROBINSON, THE FAMILY LAW BOOK
PROPERTY – DE FACTO THRESHOLDS – “BREAKDOWN” OF A DE FACTO RELATIONSHIP IS THE TRIGGER POINT FOR JURISDICTION – AGGREGATE OF CIRCUMSTANCES SUPPORTED CONCLUSION THAT RELATIONSHIP HAD BROKEN DOWN
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n 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 (Trustee) 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
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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.
PROPERTY – COURT ERRED IN CONSIDERING HUSBAND’S DEFECTIVE DISCLOSURE WHEN ASSESSING CONTRIBUTIONS – INCLUDING CAPITALISED VALUE OF PENSION IN ASSET POOL AND CONSIDERING PENSION UNDER S 75(2) IS “DOUBLE DIPPING” In Mayhew & Fairweather [2022] FedCFamC1A 53 (12 April, 2022) the Full Court (Austin, Tree and Gill JJ) heard a husband’s appeal from orders of Wilson J for a 60:40 division in the wife’s favour after a relationship of between 34 and 36 years. The husband’s appeal grounds included the treatment of his alleged defective disclosure and double counting
of his pension, where its capitalised value was included in the asset pool, but also considered as part of the wife’s s75(2) adjustment. As to the husband’s defective disclosure, the Full Court said (from [13]): “… [I]n order to be considered under s 79(4)(a) or (b) of the Act, the defective disclosure must relate to a direct or indirect, financial or nonfinancial, contribution ‘to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them’… [14] The usual way in which defective disclosure is taken into account is either by adding a sum to the pool, reflective of an estimate of the value of undisclosed property … or under s 75(2)(o) of the Act. … [W]e are satisfied that by factoring it in to the analysis of contributions, the primary judge erred … ” As to the treatment of the husband’s pension, the Full Court continued (from [23]): “ … [I]t seems inconceivable that the quantum of the income stream was not expressly taken into account in arriving at its notional capital value, and its assurance likely was reflected in the capitalisation rate applied to the income stream, and hence it was already valued by reference to that feature. … [E]ven if that were not so … how his Honour could have been satisfied that some aspect or quality of the pension had not already been taken into account in arriving at its notional value, is completely unclear. To thus use both the income stream and its assurance as the justification … for an adjustment of 2.5 per cent … is to ‘double dip’ and thus to err.”
