Wallace & Lane

[2025] FedCFamC1F 95

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Wallace & Lane [2025] FedCFamC1F 95

File number(s):

SYC 7582 of 2023

Judgment of:

BEHRENS J

Date of judgment:

21 February 2025

Catchwords:

FAMILY LAW – PROPERTY SETTLEMENT – De facto relationship – Where the Respondent pursued a case that it is not just and equitable to adjust the parties’ interests in property– Where the Respondent seeks to retain the parties’ former home – Where Respondent is the sole legal owner of the parties’ former home – Where parties’ former home is the only significant asset of the parties – Where credibility of the parties considered – Where the length of the de facto relationship was in dispute – Consideration of when a de facto relationship has broken down – Where parties found to have been in a de facto relationship for more than 30 years – Where parties endorse a “two pool” approach – Where Respondent co-owned with her ex-husband the parties’ former home at the commencement of the relationship – Where proceeds of sale of that home a significant “springboard” – Where approach to property adjustment considered –Where s 90SM(3) of the Family Law Act 1975 (Cth) considered – Where the Applicant made significant financial and non-financial contributions – Where existence or otherwise of relevant mutual understandings or agreements considered – Where it is just and equitable to adjust the parties’ interests in the property – Where parties’ respective contributions appropriately recognised by the Applicant receiving 40 per cent of main pool – Where no further adjustments are just and equitable– Where orders made for the sale of the real property the subject of the dispute in the absence of a payment by the Respondent to the Applicant

Legislation:

Evidence Act 1995 (Cth) s 128

Family Law Act 1975 (Cth) ss 4AA, 90SM, 90SF

Cases cited:

Anson & Meek (2017) FLC 93-816; [2017] FamCAFC 257

Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116

Bushby & Bushby (1988) FLC 91-919; [1987] FamCA 63

Cosola & Moretto (2023) FLC 94-143; [2023] FedCFamC1A 61

Costello & Langdon [2024] FedCFamC1A 168

Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

Fairbairn v Radecki (2022) 275 CLR 400

Figgins & Figgins (2002) FLC 93-122; [2002] FamCA 688

Grunseth & Wighton (2022) FLC 94-099; [2022] FedCFamC1A 132

In the Marriage of Robb (1995) FLC 92-555; [1994] FamCA 136

In the Marriage of Quinn (1979) FLC 90-677; [1979] FamCA 86

Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78

Kennon& Kennon (1997) FLC 92-757; [1997] FamCA 27

Lane & Wharton [2010] FamCA 18

Mallett v Mallett (1984) 156 CLR 605; [1984] HCA 21

Martell & Martell [2023] FedCFamC1A 71

Morris & Morris(No 7) [2024] FedCFamC1F 12

Oamra & Williams (2021) FLC 94-035; [2021] FamCAFC 117

Preston& Preston (2022) FLC 94-108; [2022] FedCFamC1A 157

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Suffolk & Suffolk [2007] FamCA 797

Wallis & Manning (2017) FLC 93-759; [2017] FamCAFC 14

Volmer & Krauze [2023] FedCFamC1F 869

Division:

Division 1 First Instance

Number of paragraphs:

154

Date of last submission/s:

29 November 2024

Date of hearing:

4-7, 29 November 2024

Place:

Sydney

Counsel for the Applicant:

Ms Lawson

Solicitor for the Applicant:

Auslex Law Group

Counsel for the Respondent:

Mr Livingstone

Solicitor for the Respondent:

Beswick Lynch Lawyers

ORDERS

SYC 7582 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR WALLACE

Applicant

AND:

MS LANE

Respondent

ORDER MADE BY:	BEHRENS J
DATE OF ORDER:	21 FEBRUARY 2025

THE COURT ORDERS THAT:

1.Within 60 days of the date of these orders (“the payment date”), the Respondent will pay to the Applicant the sum of $901,642 (“the payment”).

2.If the Respondent does not make the payment by the payment date, the Respondent will forthwith do all such acts and things and sign all such documents as are necessary to cause the sale of the property at B Street, Suburb C (“the Suburb C property”).

3.For the purposes of the sale pursuant to Order 2:

(a)The parties are to attempt to agree on a selling agent and solicitor/conveyancer to be appointed on their joint instructions.

(b)If agreement pursuant to paragraph (a) is not reached within 14 days of the payment date:

(i)the Applicant is within seven days thereafter to nominate three selling agents and three solicitors/conveyancers;

(ii)the Respondent is within a further seven days to select one of the selling agents and solicitors/conveyancers nominated by the Applicant;

(iii)the selling agent and solicitor/conveyancer so selected are to be appointed on the sale and each of the parties are to do all acts and sign all documents necessary to give effect to those appointments on the basis that the selling agent and solicitor/conveyancer will act on the joint instructions of the parties.

(c)The sale will take place by public auction, unless otherwise agreed in writing.

(d)The public auction will take place no later than six weeks from the date of appointment of the selling agent, unless otherwise agreed in writing.

(e)The reserve price which is to be applied for the purpose of the public auction is to be as agreed between the parties and, failing agreement, either party may ask the selling agent to recommend a reserve price and the parties are to accept the recommendation of the selling agent.

4.The parties will do all such acts and sign all such documents as are necessary to cause the proceeds of the sale of the Suburb C property to be paid in the following manner and priority:

(a)to make such payment to Westpac bank as is necessary to discharge the mortgage secured over the Suburb C property;

(b)in payment of any rates adjustment;

(c)in payment of the selling agent’s commission and expenses and legal costs and disbursements associated with the sale;

(d)of the balance then remaining:

(i)to the Applicant, the sum which is represented by the following formula: (40% of X) minus Y

where X represents (the sale price of the Suburb C property, less the payments pursuant to paragraph (c) above, less the sum of $104,187) plus the sum of $588,156 and

Y represents the sum of $451,946;

(ii)to the Respondent, the balance.

5.Except as otherwise provided by these orders, each party will retain the legal and beneficial interest, to the exclusion of the other party, of all property held in their sole name or which is in their possession or control at the date of these orders.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wallace & Lane has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BEHRENS J

1. These are property proceedings.  The applicant is Mr Wallace.  It is uncontroversial that he and the respondent, Ms Lane, were in a de facto relationship from about 1990 or 1991 until 2013 – a period of about 22 years.  The date when the de facto relationship broke down is not agreed between them. Mr Wallace says that it broke down in 2022, such that the de facto relationship lasted for about 32 years.  Ms Lane says that it broke down in about January 2013, and that the parties thereafter lived together “as friends”.

2. Ms Lane is 67 and Mr Wallace is 70.  Both are at least largely retired from paid work.  During the relationship, Mr Wallace worked as a tradesman.  He was a sole trader.  Ms Lane worked in retail.  They do not have any children together. Ms Lane has two adult children – Ms D and Mr E.  They were about 11 and nine at the commencement of the relationship. They were financially supported by their father, Mr F, and they lived between him and Ms Lane.

3. Apart from a garage and the remaining modest proceeds of an inheritance in Mr Wallace’s hands, the only property of any significant value available for distribution is the home where Mr Wallace and Ms Lane lived from 2006-2021 in Suburb C (“the Suburb C property”).  The agreed value of the Suburb C property is $2,900,000.  There is a small mortgage loan with an agreed value of $104,187 secured over it. Since separation, Ms Lane has lived in the Suburb C property. Prior to living in the Suburb C property, Ms Lane and Mr Wallace lived in a property at G Street, Suburb H (“the G Street property”), which Ms Lane co-owned with her children’s father and had owned and lived in since before the commencement of the relationship with Mr Wallace.  The G Street property was sold in 2006 for $955,000.  Ms Lane’s share of the net proceeds was approximately $630,000. Those proceeds were used, along with a small mortgage loan, to purchase the Suburb C property in Ms Lane’s sole name.

4. Ms Lane ran a so-called “Stanford case” (such cases being so named in reference to the decision of Stanford v Stanford (2012) 247 CLR 108 (“Stanford”)), in that she sought that she and Mr Wallace each keep what they have, on the basis that it is not just and equitable to adjust those interests.  Her alternate position, which was not put until submissions and at my direction, was that, if the Court found it to be just and equitable to make an adjustment, Mr Wallace should receive 10 per cent of the parties’ assets (or perhaps 10 per cent of the net value of the Suburb C property – it was not clear which). 

5. In submissions, counsel for Mr Wallace clarified that Mr Wallace sought that the property of the parties, apart from his inheritance, be divided as to 45 per cent to him and 55 per cent to Ms Lane.  It was conceded on his behalf that, notwithstanding the length of the relationship, Ms Lane should receive more than him because of her initial contribution of the G Street property. I was provided with a Minute which was said to represent that outcome. In fact, the Minute only allowed for Mr Wallace’s retention of the garage, and took no account of the agreed add-backs, nor other small items on the agreed Balance Sheet. 

6. For the reasons set out below:

   (1)I find that the parties’ de facto relationship did not break down until at least 2021 – namely, was a de facto relationship of more than 30 years. 

   (2)It is just and equitable to adjust the parties’ interests in property.

   (3)It is appropriate that, having regard to their respective contributions over this long de facto relationship, their property, excluding Mr Wallace’s inheritance so far as that remains held for him in New Zealand, be divided as to 40 per cent to Mr Wallace and 60 per cent to Ms Lane.

   (4)No further adjustment is necessary to do justice and equity in this matter.

   (5)Orders which allow Ms Lane a brief period to try to raise the funds to pay Mr Wallace, but then which require the sale of the Suburb C property and a division of the parties’ assets, excluding the remnants of the inheritance held in the New Zealand bank account, as to 40 per cent to Mr Wallace and 60 per cent to Ms Lane is just and equitable.

   DOCUMENTS RELIED UPON

7. By his Case Summary Document filed 28 October 2024, Mr Wallace indicated that he relied on the following documents:

   (1)Initiating Application filed 11 October 2023.

   (2)His affidavit filed 5 September 2024 (“Mr Wallace’s affidavit”).

   (3)His Financial Statement filed 5 September 2024.

   (4)His affidavit in reply, filed 4 October 2024 (“Mr Wallace’s affidavit in reply”).

   (5)Affidavit of Ms J, filed 22 August 2024.

   (6)Affidavit of Mr K, filed 22 August 2024.

   (7)Affidavit of Mr L, filed 29 August 2024.

   (8)Affidavit of Ms M, filed 22 August 2024.

   (9)Affidavit of Ms N, filed 26 August 2024 (this Affidavit was sealed on 27 August 2024).

   (10)Affidavit of Ms O, filed 26 August 2024.

   (11)Affidavit of Mr P, filed 30 August 2024.

   (12)Affidavit of Mr Q, filed 30 August 2024.

   (13)Affidavit of single expert Mr R, being the valuation of S Street, Suburb C (garage), filed 24 October 2024 (this Affidavit was sealed on 28 October 2024).

8. By her Outline of Case filed 28 October 2024, Ms Lane relied upon the following material:

   (1)Amended Response filed 8 April 2024.

   (2)Her Financial Statement filed 27 September 2024.

   (3)Undertaking as to Disclosure filed 27 September 2024.

   (4)Her affidavit and Exhibit “MLO1” filed 27 September 2024 (“Ms Lane’s affidavit”).

   (5)Affidavit of Mr E, filed 20 September 2024.

   (6)Affidavit of Ms D, filed 20 September 2024.

   (7)Affidavit of Ms T, filed 20 September 2024.

   (8)Affidavit of Ms U, filed 20 September 2024.

   (9)Affidavit of Ms V, filed 20 September 2024.

   (10)Affidavit of Ms W, filed 20 September 2024.

   (11)Affidavit of Ms X, filed 20 September 2024.

   (12)Affidavit of Ms Y, filed 20 September 2024.

   (13)Affidavit of Ms Z, filed 1 October 2024.

   (14)Access Valuations Valuation Report of B Street, Suburb C dated 12 July 2023.

   (15)Access Valuations Valuation Report of S Street, Suburb C dated 11 September 2023 (the garage).

   (16)Access Valuations Valuation Report of B Street, Suburb C dated 8 October 2024.

   (17)Access Valuations Valuation Report of S Street, Suburb C dated 23 October 2024 (the garage).

9. The values of both the garage and the Suburb C property were ultimately agreed. I was, however, taken to the valuation reports in relation to the Suburb C property in support of some submissions.

10. Ms M, who was on affidavit for the applicant, and Ms Z, who was on affidavit for the respondent, were not required for cross-examination.  Each other witness was cross-examined.

11. I also had before me Case Outlines filed each party on 28 October 2024.  Those Case Outlines contained an outline of submissions.  At the conclusion of the hearing, I was provided with a document in aid of the respondent’s oral submissions.  The parties also filed statements of issues and findings on 22 and 23 October 2024 and a Joint Chronology of agreed non-controversial facts. 

12. An agreed Joint Balance Sheet was marked “C2”.  It contained some mathematical errors, and a final agreed Joint Balance Sheet was received by email to my Associate on 16 December 2024.

    ISSUES I NEED TO DECIDE

    Uncontentious issues

13. By the conclusion of the trial, there was agreement about a Joint Balance Sheet, including add‑backs for legal fees, and also agreement that the remnants of an inheritance Mr Wallace has in a New Zealand bank account should be in a separate pool and disregarded. There was agreement that, apart from the Suburb C property, each party should keep what they have. Mr Wallace agreed that Ms Lane should have the opportunity to raise the funds necessary to make a payment to him before the Suburb C property was sold. Neither party sought an adjustment for future needs or financial circumstances, nor contended that any matter under s 90SF(3) of the Family Law Act 1975 (Cth) (“the Act”) was relevant. Specifically, counsel for Mr Wallace did not seek an adjustment pursuant to s 90SF(3)(r) for his contributions towards Ms Lane’s children, but maintained that Mr Wallace’s contributions to the household, which included Mr E and Ms D when they were children, were relevant matters.

    The relevance of the date when the de facto relationship broke down

14. Throughout the trial, Ms Lane maintained her position that the parties’ de facto relationship had broken down in 2013. Mr Wallace maintained his position that the relationship breakdown occurred in 2022. 

15. The reason or reasons why this issue is relevant to the matters I need to decide was not clearly articulated.  On 20 October 2023, the parties had consented to the matter proceeding irrespective of whether the standard application period had elapsed, so the date of relationship breakdown was not relevant to that question. There was no question that the threshold requirements in Part VIIIAB were met.  The issue could only be relevant, therefore, in the following ways:

    (1)If it was the case that the parties separated in 2013 and were thereafter living “as friends”, the fact that Mr Wallace had not pursued a property adjustment until 2023 might go to whether it is “just and equitable” to adjust the parties’ interests in property now, independently of the question of the extent of his contributions.

    (2)If the de facto relationship ended in 2013, payments made by Mr Wallace after that date might be characterised as payments of rent, as opposed to contributions of relevance pursuant to s 90SM of the Act.

    (3)If the de facto relationship was of 23 years’ duration – as opposed to 32 – that may make some difference to the assessment of contributions and, in particular, to the weight that should be given to the initial contribution of a property by Ms Lane.

16. As I set out below, the issue is also relevant to the respective parties’ credibility.

    Contentious issues

17. At their broadest, the contentious issues I was asked to decide were:

    (1)When did the parties’ de facto relationship break down?

    (2)Is it just and equitable to adjust the parties’ property interests, such that Mr Wallace would receive a cash payment either from Ms Lane or from the sale of the Suburb C property?

    (3)What were the parties’ respective contributions and (if I decide it is just and equitable to adjust the parties’ property interests) how should they be evaluated?

    CREDIBILITY OF THE PARTIES

18. This is a matter in which it is necessary to make some credibility findings. 

19. By the conclusion of the trial, I had formed the view that Ms Lane had tailored her evidence to try to advance her case that she should retain the Suburb C property.  As I set out in further detail below, it became clear that in her affidavit, Ms Lane had minimised Mr Wallace’s contributions, given evidence that unfairly and/or irrelevantly criticised him and his conduct and, at times, was not truthful with the Court nor those she called as witnesses in her case.  These characteristics were also apparent in some of her oral evidence. 

20. This was most obvious when she was under cross-examination and, having been told before an earlier adjournment that “you remain under cross-examination.  So it’s very important you don’t discuss your evidence with anyone.  Your lawyers won’t speak with you” (Transcript 6 November 2024, p.38 lines 40-45), and warned again before the luncheon adjournment that “you’re under cross-examination, so make sure that you don’t discuss your evidence with anyone” (Transcript 6 November 2024, p.67 lines 15-20), she conceded upon her return to the witness box that she telephoned her lawyer over the luncheon adjournment and attempted to discuss what she saw as an unfairness in the way a document had been put to her during cross-examination. Worse, when she was asked about this exchange in cross-examination, she first described it as a “15 second” conversation and said that her lawyer had hung up on her.  She was then required to produce her phone, and then had to concede that it had been a two-minute conversation, during which she had tried to persuade her lawyer to talk with her.  Ms Lane tried to excuse this behaviour on the basis that she had never been in court before and did not know how court processes work. These explanations ignored the fact that she had been clearly and plainly warned by me on more than one occasion, and had heard the many previous warnings I had given to Mr Wallace when he was under cross-examination.

1. Counsel for Ms Lane appropriately cautioned that I should not attach too much significance to Ms Lane’s conduct on this occasion and submitted that I should see the whole event – including Ms Lane’ evidence about it – as affected by the stress of the circumstances. Certainly, I must not take a punitive approach to what Ms Lane did, and I must not assume that just because Ms Lane did not tell the truth about this event initially, she is not telling the truth about anything.  Nonetheless, this incident was one of the matters that seriously undermined her credibility in circumstances where her credibility was critical to her case.   

2. Ms Lane also called her two adult children and friends as witnesses in her case and, as they were cross-examined, it became very clear that she had given them accounts of her relationship with Mr Wallace and Mr Wallace’s contributions (or lack thereof) to the relationship which did not reflect what had occurred. These disparities left some of these witnesses in an awkward position under cross-examination. Most poignantly, Mr E appeared genuinely incredulous when he was told that his mother had wanted to marry Mr Wallace, that notices of intention to marry had been filed, and that his mother had expressed a wish to marry Mr Wallace in 2013.  Again, I must not take a punitive approach, and must bear in mind that Ms Lane did not have a legal obligation to tell her children and friends the truth about these matters.  Nonetheless:

   (1)Ms Lane’s credibility was damaged by her approach to these matters. 

   (2)I did not attach the significance I otherwise might have to the fact that some witnesses gave evidence that Ms Lane had told them things which were consistent with her case as put before me (for example, that Mr Wallace was paying “rent”). 

   (3)Evidence of Ms Lane’s family and friends which was relied on to establish matters pertaining to the relationship between her and Mr Wallace was, because of Ms Lane’s lack of candour with them, for the most part unreliable.

3. Ms Lane was often evasive when giving her evidence. The following exchange about a photograph and text message which she sent to Mr Wallace’s sister Ms J in 2018 during a trip to Region BB attended by Ms Lane, Mr Wallace, Ms Lane’s adult children, their partners and her grandchildren, is an example (respondent’s answers italicised, emphasis not in original):

   Okay.  So not only were you not concerned but you told [Ms J] following that it was lovely and it should be an annual trip? For my children and I to meet in [Region BB], yes.

   Well, your text message doesn’t say that.  It captures a photo of you, [Mr Wallace] and your grandkids together? My children’s father had just died.

   Okay.  We will come to that aspect of your evidence.  We will go there, but you – in that trip, you thought that that was an appropriate – that they – appropriate thing that they were all together; is that right? It was unavoidable. (Transcript 6 November 2024, p.23 lines 5-10).

4. There were many points at which Ms Lane’s evidence was undermined in cross-examination to the extent that I did not believe it.  For example:

   (1)Whilst Ms Lane gave evidence that she was fearful of Mr Wallace because of his behaviour towards her, including after 2013, under cross-examination she admitted that during their time in Region BB in 2018, she did not hold any concerns about Mr Wallace being in the presence of Mr E, Ms D and her grandchildren (Transcript 6 November 2024, p.22 line 40 to p.23 line 5). She gave similar evidence with respect to her time in Melbourne with Mr Wallace in 2019, and agreed with the proposition that she was not scared of spending time with Mr Wallace alone during the trip from Sydney (Transcript 6 November 2024, p.24 lines 40-45). Ms Lane was challenged on the inconsistencies in her evidence – namely, that she said she was frightened of Mr Wallace but would not only attend trips with him, but also initiated and planned them, even after she says that they had separated.  Ms Lane gave unconvincing evidence in response that “I was scared of [Mr Wallace] when I was at home. We always did well on a trip” and “you’re not alone when you’re on a trip” (Transcript 6 November 2024, p.31 lines 30-35).  I return to the evidence about family violence below.

   (2)Exhibit A5 was a letter of review provided by clinical psychologist Ms CC, upon whom Ms Lane attended for a number of sessions during 2022. According to Ms CC, Ms Lane had advised that “she had been in a relationship with her now ex-partner for thirty-three years … they had recently ended the relationship”. When cross-examined on this point, Ms Lane stated – and maintained – that she had informed Ms CC that her relationship with Mr Wallace had ended in 2012 or 2013, despite there being no evidence in the letter of review of any such conversation (Transcript 6 November 2024, p.34 lines 10- 35).  I did not believe that evidence.  Ms Lane’s description of the duration of her relationship as contained in this letter of review was in direct contradiction to her contention, as maintained throughout her cross-examination and in her Amended Response to Initiating Application filed 8 April 2024, that her relationship with Mr Wallace had broken down about a decade earlier. Similarly, Exhibit R14 was an IAR Decision Support Tool completed for Ms Lane in early 2022, where she is recorded as having said:

   33 year relationship has come to an end. Ex-partner has been verbally abusive for some time. He was deceitful and a bully in their relationship. He continues to be present in [Ms Lane’s] life while verbally degrading her to herself and their acquaintances.  [Mr Wallace] (ex partner) may make a claim for her house. [Ms Lane] is seeking legal advice and may take out an AVO.  He has not been physically violent. [Ms Lane] is very resilient and motivated to move on.

   (3)On 20 October 2023, the parties consented to the matter proceeding, notwithstanding that on Ms Lane’s case, the relationship had broken down more than two years before the application was filed, so as to be outside the “standard application period”.  At that stage, it was Ms Lane’s case that the relationship broke down in July 2021 – that was the date which she had used in her Response filed 7 November 2023, which became Exhibit A6.  In answer to question 19a, “Details of facts in dispute”, Ms Lane provided “[r]espondent does not agree with commencement of living together at 25 Responsent [sic] assers [sic] this was 1991 Respondent does not agree with 27 Final date of separation she asserts is 7 July 2021”.  Ms Lane was questioned about the inconsistency between that evidence and her position at the trial. She confirmed that she was legally represented when she filed that Response and the following exchange occurred (respondent’s answers italicised, emphasis not in original):

   Okay. Because there’s other examples of that in the material, isn’t there? I accept that he and I had a very long friendship which changed in its nature.

   Okay. So when you’ve used the word “relationship” in some of your material that’s been filed with the Court, are you asking her Honour to deduce that when you accept in that material that it’s a 30-plus year relationship, you’re referring to a friendship? Yes

   Is that right? Yes, that’s correct. (Transcript 6 November 2024, p.35 lines 10-15)

   I did not believe Ms Lane’s evidence on this point, and deal with it further below.

   (4)In the financial questionnaire filed on her behalf on 7 November 2023, Ms Lane stated that she and Mr Wallace did not intermingle finances during their relationship, and described Mr Wallace as “on occasion making small contributions to expenses”. However, under cross-examination, she changed that evidence by adding the qualification that they did not intermingle finances “post 2013” (Transcript 6 November 2024, p.46 line 15).  Further, an internet home loan application lodged by Ms Lane in approximately 2006 with respect to the Suburb C property, which became Exhibit A7, recorded “I am in a defacto [sic] relationship (15 yrs [sic]) and although that income is not declared, the household is run from that source”. Later during cross-examination, Ms Lane advised that the assertion in her financial questionnaire that she and Mr Wallace did not intermingle finances was true, except insofar as they held a joint bank account (Transcript 6 November 2024, p.51 lines 10-35), but then conceded that during “Covid time”, she would use Mr Wallace’s earnings to purchase groceries for the household (Transcript 6 November 2024, p.57 line 15 to p.58 line 5), and later acknowledged that Mr Wallace had contributed to the renovation of the Suburb C property by, for example, purchasing materials (Transcript 6 November 2024, p.60 lines 10-40) and had paid household bills. She also explained that her conceptualisation of “intermingling finances” did not encompass, for example, Mr Wallace paying bills that were in her name only, but instead was limited to “having things in joint names” (Transcript 6 November 2024, p.52 lines 10-35).  I formed the view that this was an example, like the previous one, where Ms Lane was trying to “massage” the evidence to fit an account which she believed would assist her case.

   (5)During cross-examination, Ms Lane maintained that the receipt of $250 and then $500 per week from Mr Wallace was rent, despite being taken to bank statements (which became Exhibit A15) that showed payments bearing the name “Deposit [Mr Wallace] Mortgage Payment” being deposited into her mortgage loan account. She also continued to contend that Mr Wallace was a tenant, despite there being no document, text message or other communication  (apart from a Will, to which I refer below) to indicate that her relationship with Mr Wallace was one of landlord and tenant (Transcript 6 November 2024, p.78 lines 15-25), and despite her maintaining that she did nearly all the housework throughout the relevant time, went on holidays with Mr Wallace, that he volunteered to double the payment from $250 to $500, and that he paid for them both household bills and a couple’s private health insurance policy.

   (6)Faced with a potential argument that, if Mr Wallace was paying rent, then that income should have been declared to the Australian Taxation Office (“ATO”), Ms Lane gave evidence that she had received advice from a tax agent that she was neither required to declare the income nor file a tax return.  This issue was explored with her in cross-examination. Ms Lane evaded questions and gave evidence which was improbable (for example, that although she was asking her tax agent about whether she had to declare the rent paid by Mr Wallace, she did not disclose that she was in a relationship with him).  Her evidence of previous contact with, and advice from, DD Tax Agents in those terms was inconsistent with records produced under subpoena by DD Tax Agents which became Exhibit A18 and recorded only a consultation for tax advice in mid-2023, for which she was charged $50. DD Tax Agents otherwise held no records in relation to Ms Lane.  Ms Lane conceded that although she was not able to provide those records, she had not given authority to Mr Wallace’s lawyers to access her ATO records in circumstances where they might contain important and relevant information, such as whether she had declared that Mr Wallace was her partner. 

   The following Interchange occurred during cross-examination (respondent’s answers are italicised, emphasis not in original):

   Now, you understand that you could have given that authority for the husband’s legal team to seek information out from the ATO themselves? Yes, I realize that, yes. 

   And you didn’t? It slipped through for me.  I’m sorry. 

   When you say it slipped through, we’ve gone through it.  It was the subject of numerous pieces of correspondence.  Correct? The bit where I could give him authority to seek that information, I didn’t. 

   Sure.  But when you heard us in court, again, make a call for it on the first day of the hearing, you knew it was of such? Yes, yes. 

   of some importance? Yes. 

   And even during the course of these proceedings, you haven’t thought, “I remember they requested access or authority to consult with the ATO on your behalf”? I had forgotten that.  I’m sorry. (Transcript 6 November 2024, p.112 lines 15-30)

   I did not believe Ms Lane’s evidence on the matters referred to above, and find that this was another example of her tailoring her evidence and doing so in a dishonest way.

   (7)After Ms Lane conceded that Mr Wallace paid for a couple’s health insurance policy for them both until 2022, the following exchange occurred:

   When, to your knowledge, was that couple’s policy cancelled? From this case, I understand it cancelled in early 2022. 

   Yes.  So you weren’t paying for the couple’s policy? No, I wasn’t. 

   Were you? No. 

   Who was paying for the couple’s policy? [Mr Wallace] was paying for the couple’s policy. 

   So all through this period of time, is it your evidence that you now accept that he paid for your health insurance? Yes.  I accept that. 

   And you knew it the whole time, it’s not just through these proceedings.  You knew you had a joint couple’s health policy the whole time? Yes.  I used it. 

   You used it regularly? Yes.  Twice. 

   Is that seriously your evidence, you only used it twice? No.  I used it – I – I used it.  But there were two occasions that I used it. 

   Two occasions? There was [visits to an allied health professional] for [an injury], and there was hospital visits in 2012.  I might have used it for [another allied health service] as well.  I can’t remember.  

   Okay.  So I’m going to show you – and you understand that in response to these proceedings, we’ve got those documents.  We’ve asked for them? Yes.  I understand that. 

   Okay.  So you initially said you’ve used it two times.  I will show you this? Thank you. 

   Can you confirm it’s [a] health insurance policy? Yes. 

   Do you see that there? Yes.  

   Do you see your name on it, [Ms Lane]? Yes. 

   It’s a claim statement.  Do you see it says member [Ms Lane]? Yes.  I can see that. 

   It doesn’t say that this is a member statement for [Mr Wallace], does it? It doesn’t say that.  However, some of these things aren’t mine. 

   Sorry.  Does it or does it not say that it’s a claim statement for [Mr Wallace]? It says it’s a claim statement for [Ms Lane].  

   Okay.  And it’s only from 2005 through to 2022.  Do you see that? Yes.  

   And would you accept from looking at that document it’s far more than two claims, isn’t it? It’s far more than two claims. (Transcript 6 November 2024, p.63 line 5 to p.64 line 5)

   (8)Ms Lane and witnesses called in her case had given a great deal of evidence about Mr Wallace’s marijuana use and, in particular, what she said was Mr Wallace’s role in involving and exposing Mr E to marijuana use. Mr Wallace was questioned about the fact that he used marijuana after Mr E had been in trouble with the police in connection with marijuana use.  Ms Lane did not tell me in her affidavit that she had also used marijuana.  This was, however, conceded under cross-examination.  She gave firm evidence that “I never smoked it when [Mr E] was there or either child” (Transcript 6 November 2024, p.118, line 20).  Mr E was called as a witness for Ms Lane, and his evidence was clear that she had smoked marijuana, and that he had seen her do so, including after he had been in trouble with the police.

5. These are just some examples; I refer to others throughout this judgment. I have approached all of Ms Lane’s evidence with a great deal of caution.

6. There were also some issues with Mr Wallace’s credibility. He was evasive in his answers at times – particularly in relation to his possession and sale of marijuana. I also simply did not believe his evidence about his receipt of cash income for work. In particular, he gave evidence that he was only occasionally paid in cash and was never paid thousands of dollars in cash (Transcript 5 November 2024, p.40 line 45 to p.41 line 5). Following the issuing of a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) in relation to questions about his compliance with his income tax obligations, Mr Wallace also said that he declared any cash income he received (Transcript 4 November 2024, p.44 line 40 to p.45 line 10). I do not believe this evidence, particularly in light of how low Mr Wallace’s taxable income was at times, and given the unchallenged evidence of Ms Y, who at paragraph 16 of her affidavit deposed that she paid Mr Wallace a total of $32,400 for work he had undertaken at her house, and that “[h]e asked to be paid in cash”. Whilst Mr Wallace, when cross-examined on this point, had denied that he had received such payment from Ms Y, on the morning of the third day of the final hearing, counsel for Mr Wallace advised that after leaving the witness box, he recalled that he had received funds from Ms Y but had then returned them to her. Ms Y was not cross-examined on this aspect of her affidavit evidence, and it was agreed that counsel for Mr Wallace would provide a proof of evidence on this point, and that counsel for Ms Lane would then decide whether to seek leave to reopen cross-examination of Mr Wallace. No proof was tendered and no such leave was sought.

7. Apart from these two issues, which, as I set out below, were not relevant to the matters I need to decide, I believed Mr Wallace’s evidence. Where there is a contest between the two, I prefer his evidence over Ms Lane’s evidence.

   OTHER ISSUES WITH THE EVIDENCE

8. There were a significant number of witnesses called by both parties, and – notwithstanding that no objections were taken to it – much of the evidence given by these witnesses was of no assistance to me in deciding the issues.  Much of the evidence was given in such a way that I could attach no weight to it, for example, evidence from laypeople about their opinion of the quality of work undertaken by Mr Wallace, and about matters of conduct which could only be relevant if admitted as tendency evidence (which it was not). Other such evidence included vague and unparticularised views about Mr Wallace, for example, the evidence of Ms W, that “[b]y this time, my perception of [Ms Lane] was that she was afraid of [Mr Wallace]” (affidavit of Ms W, paragraph 12) or the evidence of Ms T that “I still visited [Ms Lane] at her home, but [Mr Wallace] did not really engage.  We were friendly but not friends.  My husband did not have anything to do with [Mr Wallace]” (affidavit of Ms T, paragraph 7). Disparities between the evidence and what these witnesses had been told by Ms Lane became apparent when, for example, Ms V gave evidence that Ms Lane had told her “’I’m paying for all of the mortgage, renovations and bills’” (affidavit of Ms V, paragraph 11) and seemed very surprised when she was told about Mr Wallace’s financial contributions, which by then had been conceded. 

9. A childhood friend of Ms D was called in Ms Lane’s case.  Her evidence did not assist me, particularly given Mr Wallace’s case was not that he was a father figure to Ms D or Mr E.  A significant and unnecessary amount of trial time was spent dealing with this kind of evidence.

10. In relation to these additional witnesses, I also note that:

    (1)No submissions were made on behalf of the respondent as to what I should draw from the evidence of Ms Z.  Ms Z’s affidavit evidence did not assist me at all except that, notwithstanding she gave evidence of being a long-standing acquaintance of Ms Lane, she did not give any evidence which would support the proposition that the de facto relationship ended in 2013. The same is true for the evidence of Ms Y.

    (2)I have considered the evidence of Ms T as to conversations she had with Ms Lane.  This was evidence which covered the whole period of the relationship, including a period about which the parties are in agreement that they were in a de facto relationship, and so did not assist me in determining whether the relationship had broken down in 2013. 

    (3)Ms T gave evidence that, at some stage Ms Lane said to Ms T “‘[Mr Wallace] put a caveat on my house. That’s the final straw, I’m done’” and “’[h]e’s still living here, he will pay rent. It’s convenient for me’” (affidavit of Ms T, paragraph 19).  Similarly, Ms V gave evidence that, “shortly after the caveat incident”, Ms Lane had said to her “’[m]y relationship with [Mr Wallace] is essentially over.  He is paying my [sic] $250 per week for rent’” and that, “[a]t that time, [Ms Lane] showed me that she had moved up to the attic room” (affidavit of Ms V, paragraph 14). Ms W gave evidence that “[s]hortly after [Ms Lane] discovered the caveat, she said to me ‘I’ve moved upstairs’” (affidavit of Ms W, paragraph 10).  That kind of evidence suffers from the difficulty that much of what Ms Lane had told the witnesses was evidently not true – or at least was her “spin” on things. In any case, as I find below, although the parties’ relationship was clearly under strain in the period around the lodging of the caveat; that does not mean that it did not continue. Without more, I can attach no weight to the evidence that, for example, Ms W “…observed that [Ms Lane] and [Mr Wallace] started really living independently of each other” (affidavit of Ms W, paragraph 10).

    (4)The evidence of Ms X – a long-term friend of Ms Lane – was not of any assistance to me. She did not provide any details of conversations or observations which led her to the conclusion that “[a]s far as I am aware, [Ms Lane] and [Mr Wallace] separated 12 or 13 years ago but he stayed in her home and paid her rent” (affidavit of Ms X, paragraph 6).  She did not say when she became “aware” of this and it could obviously have been after these proceedings were commenced.

1. Mr E gave evidence in Ms Lane’s case. His evidence did not assist me, in part because it was clear that there was much about the relationship that he did not know and that some of the things he had been told by Ms Lane were not true.  He gave evidence that Ms Lane had told him that she paid all the groceries and all the bills and that Mr Wallace did not pay anything other than $250 per week.  That was not even Ms Lane’s evidence.  I refer below to the “conduct evidence” and its relevance.  Mr E gave evidence that to repay Mr Wallace for marijuana he had taken, he had been effectively forced by Mr Wallace to sell marijuana to his school friends.  Notwithstanding that Ms Lane maintained her position that she and Mr Wallace had separated in 2012 or 2013, Ms Lane and Ms D confirmed that until these proceedings had commenced, Mr E had not told them about this, nor shared with them details regarding a police call out, about which he gave evidence.  Mr Wallace firmly and consistently denied those allegations. I am not persuaded that the events occurred in the way described by Mr E.

2. Similarly, much of the evidence from witnesses called in Mr Wallace’s case was of poor quality and little relevance.

   WHEN DID THE PARTIES’ DE FACTO RELATIONSHIP BREAK DOWN?

3. The definition of de facto relationship is contained in s 4AA of the Act.

   4AA  De facto relationships

   Meaning of de facto relationship

   (1) A person is in a de facto relationship with another person if:

   (a) the persons are not legally married to each other; and

   (b) the persons are not related by family (see subsection (6)); and

   (c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

   Paragraph (c) has effect subject to subsection (5).

   Working out if persons have a relationship as a couple

   (2)       Those circumstances may include any or all of the following:

   (a) the duration of the relationship;

   (b) the nature and extent of their common residence;

   (c) whether a sexual relationship exists;

   (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

   (e) the ownership, use and acquisition of their property;

   (f) the degree of mutual commitment to a shared life;

   (g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

   (h) the care and support of children;

   (i) the reputation and public aspects of the relationship.

   (3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

   (4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

   (5) For the purposes of this Act:

   (a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and

   (b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

   When 2 persons are related by family

   (6) For the purposes of subsection (1), 2 persons are related by family if:

   (a) one is the child (including an adopted child) of the other; or

   (b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or

   (c) they have a parent in common (who may be an adoptive parent of either or both of them).

   For this purpose, disregard whether an adoption is declared void or has ceased to have effect.

4. The High Court in Fairbairn v Radecki (2022) 275 CLR 400 (“Fairbairn v Radecki”) identified at [39] that (emphasis in original):

   “Living together”, consistently with authority, should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. That conclusion is supported by the varied factors listed in s 4AA(2). In a given case, some of the factors listed in s 4AA(2) may be relevant and some may be irrelevant; inevitably some may have greater prominence than others. A conclusion that a de facto relationship has ended may also arise because of factors not listed in s 4AA(2). Such a conclusion is mandated by s 4AA(3) and (4). In particular, s 4AA(4) is a statutory recognition that what may constitute a genuine de facto relationship is not be determined in the same way in every case by reference to rigid criteria that must always be satisfied.

5. The High Court reiterated in Fairbairn v Radecki at [29]-[30] that:

   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”. Such a conclusion is not precluded by the presence of an ongoing relationship of some sort. That is not the inquiry. The question is whether a de facto relationship exists or has broken down.

   In the context of a human relationship, “breakdown" refers to the “end” or “breakup” of what had been an enduring emotional bond. It is the “breakdown” or “end” of a de facto relationship that is the trigger point for the Federal Circuit and Family Court to be seized of jurisdiction to make a property settlement order under s 90SM of the Act…

6. The parties agree that they were in a de facto relationship prior to 2013. Accordingly, the question for me is whether they continued to have a relationship as a couple living together on a genuine domestic basis during and after 2013.  Ms Lane contends that they lived together “as friends” or as landlord and tenant after 2013.  Mr Wallace contends that they lived together as a couple until early 2022. 

7. The findings of fact I need to make turns partly on issues of credit. Ms Lane has previously claimed, in contexts in which she had an obligation to tell the truth, that the parties were in a relationship as a couple after 2013.

8. In 2016, Ms Lane signed a witness statement (which became Exhibit A14) in proceedings in the New South Wales Civil and Administrative Tribunal between Mr Wallace and another party.  In the first two paragraphs of that statement, she solemnly declared that:

   I am a resident of [B Street] and partner of [Mr Wallace], the respondent to these proceedings. 

   I make this statutory declaration without favour to [Mr Wallace].  My statement of fact is not swayed by my relationship with [Mr Wallace]. 

9. On 20 October 2023, the parties consented to the matter proceeding notwithstanding that, on Ms Lane’s case, the relationship had broken down more than two years before the application was filed.  At that stage, it was her case that the relationship broke down in 2021 – that was the date which she had used in her Response filed 7 November 2023, which became Exhibit A6.  In answer to question 19a “Details of facts in dispute”, Ms Lane has put “Respondent does not agree with commencement of living together at 25 Responsent [sic] assers [sic] this was 1991 Respondent does not agree with 27 Final date of separation she assets is 7 July 2021”.  Ms Lane confirmed that she was legally represented at the time when she filed that Response and the following exchange occurred during cross-examination (respondent’s answers italicised, emphasis not in the original):

   Okay.  Because there’s other examples of that in the material, isn’t there? I accept that he and I had a very long friendship which changed in its nature. 

   Okay.  So when you’ve used the word “relationship” in some of your material that’s been filed with the court, are you asking her Honour to deduce that when you accept in that material that it’s a 30-plus year relationship, you’re referring to a friendship? Yes. 

   Is that right? Yes, that’s correct (Transcript 6 November 2024, p.35 lines 10-15). 

10. I do not accept that Ms Lane did not understand that the question pertained to when the parties’ de facto relationship broke down. She subsequently filed an Amended Response to Final Orders on 8 April 2024, in which she stated that the date of cohabitation was 1991, and the date of separation was 21 December 2012.  I find that she took such action because she had realised the implications of a concession that she and Mr Wallace were in a de facto relationship until July 2021 upon her claim to keep the Suburb C property.

11. I have referred above to the evidence about what Ms Lane told two counsellors – namely, that her relationship of over 30 years had broken down.

12. Mr Wallace gave evidence in his affidavit that he had indicated on his income tax returns, in respect of which he had an obligation to tell the truth, that he was single – even during the period he now says he was in a de facto relationship – but that this was because he did not have information about Ms Lane’s income to complete the necessary details.  I have taken this matter into account with the balance of the evidence.

13. There is no requirement that, for a de facto relationship to have broken down, an intention to separate must have been communicated, however, communications between the parties about their relationship are relevant – in particular, to the inquiry as to whether a party is to be believed that the relationship had broken down, and to the question of whether they maintained a “mutual commitment to a shared life.” 

14. Counsel for Mr Wallace commenced cross-examination of Ms Lane with questions about whether there were communications or conversations between her and Mr Wallace to the effect that the relationship was over.  In response, Ms Lane referred to an email which she wrote to Mr Wallace in early 2013 (some six months after the caveat had been lodged over the Suburb C property).  That email, which became Exhibit A2, commenced with the following paragraph:

    I’ve read your email several times over the last days.  [Mr Wallace] if you had put a little more effort into getting things right between us and stop trying to ‘win’ and ‘take control’ of me we would be way ahead of this by now.  I know you think you’ve been trying, but I’m talking about talking [sic] some serious steps, or at least acknowledging my idea to have a holiday together or even get married.  I fail to see what good all this is doing.  I’ve put myself right on the line for you, and been treated appallingly in return.  I don’t know what you’re doing??

15. The correspondence to which this email was a response was not in evidence.

16. The following interchange took place (Transcript 6 November 2024, p.10 line 25 to p.11 line 40) (respondent’s answers italicised, emphasis not in original):

    And you say that, after that relationship of approximately 22 years, you can’t recall a specific conversation or communication where one or both of you said, “It’s over”? There wasn’t one single conversation to say that, no.

    Ms Lawson: Okay.  So in terms of a specific date, you say there isn’t one? Not a specific date, no.

    Ms Lawson: Okay. And, in terms of a specific communication by way of an email, by way of a text, there isn’t one, is there? There’s the email [from early] 2013 which he responded to.

    …

    And you would accept, wouldn’t you, that nowhere in that email do you tell [Mr Wallace] that it’s over? That’s true, yes.

    And nowhere in that email do you say words to the effect, “That’s it.  We’re separating”? Ms Lawson, it’s very difficult to draw the line with [Mr Wallace].

    Sorry, I didn’t ask you about lines being drawn.  So do you accept that nowhere in that email do you propose, suggest, put forward, say that you’re separating? That’s correct.

17. Ms Lane then conceded that she was saying in the email that she “wanted to take serious steps with him and holiday with him and get married” (Transcript 6 November 2024, p.12 line 5).  This is inconsistent with Ms Lane’s position that the de facto relationship had broken down.

18. Mr Wallace lodged a caveat over the Suburb C property in late 2012. While I accept that it would be unusual to lodge a caveat over a property unless you were anticipating a dispute about that property, the lodging of the caveat does not by itself establish the breakdown of the relationship, and cannot support that their relationship as a couple did not continue afterwards.

19. The parties continued to have a common residence at the Suburb C property for the period from 2012 until 2021.  They both travelled separately and spent time away from the home, but the evidence was clear that the property remained their joint home.  As I set out below, they worked together on its improvement, and shared with family and friends their pride in their work.

20. At no point did the parties have shared legal title to property, other than a joint bank account.  They closed that bank account in 2013 and subsequently operated separate bank accounts.  However, as I set out in further detail below, their financial interdependence continued, with Mr Wallace paying household bills, contributing financially to the improvements to the Suburb C property, and making mortgage loan repayments.

21. In the Financial Questionnaire filed on her behalf on 7 November 2023, Ms Lane told the Court that, for the duration of the “cohabitation”, she was responsible for all household domestic duties including shopping, cooking, cleaning, general maintenance, taking the rubbish out prior to collection, gardening and changing sheets.  She confirmed that she undertook those tasks for over 30 years, and did not draw a distinction between what occurred prior to 2013 and what occurred afterwards (Transcript 6 November 2024, p.40 line 40 to p.41 line 45).  She agreed with the proposition that she was “doing the type of things that people do when they’re part and parcel of a couple” (Transcript 6 November 2024, p. 42 line 10).

22. The parties went on the following trips together:

    (1)To Tasmania in 2018;

    (2)To visit Region BB in 2018 (this being the trip referred to in Exhibit A3 above). Ms Lane’s daughter Ms D and her children (aged eight and three), as well as Ms Lane’s son Mr E, his partner and his partner’s son also attended this;

    (3)To visit Mr Wallace’s family in New Zealand in 2018;

    (4)To visit Ms D in Melbourne in 2019;

    (5)To visit Ms D at her home in Melbourne during the Covid-19 lockdowns pending the birth of her child;

    (6)To visit Mr Wallace’s mother in New Zealand in 2021. 

    Mr Wallace also accompanied Ms Lane to City EE in early 2018 so that she could assist her children in packing up storage units that had belonged to her deceased ex-husband Mr F (this trip coincided with the Region BB stay).  The trip to New Zealand in 2021 was in the context that Mr Wallace’s elderly mother was in decline.  The following exchange occurred during cross-examination of Ms Lane (respondent’s answers italicised, emphasis not in original):

    And just as [Mr Wallace] had shared in your vulnerable moment as a family by coming to [City EE] to help clear out [Mr F’s] belongings or the children’s belongings, this is an example, would you agree, of you sharing in his family’s vulnerabilities? Yes. (Transcript 6 November 2024 p.28, line 25)

    Ms Lane and Mr Wallace also planned a joint holiday overseas which was to take place in 2020, however, the trip did not occur as a result of Covid-19 shutdowns (affidavit of Mr Wallace filed 5 September 2024, paragraphs 194-195).

23. I accept Mr Wallace’s evidence that the parties shared a bed throughout their relationship, although at times over the last decade of the relationship he had difficulty sleeping and would go into the loungeroom during the night to sleep and, at times, Ms Lane slept in the attic (Mr Wallace’s affidavit in reply, paragraph 7). There was limited evidence about the extent of any sexual relationship, but Mr Wallace gave evidence that this aspect of the relationship continued until 2021, when he travelled to Town FF to visit his brother Mr JJ (Mr Wallace’s affidavit in reply, paragraph 9). This contrasted with Ms Lane’ affidavit evidence, having deposed at paragraph 65 that the last occasion when she and Mr Wallace were physically intimate was “early 2013”, this being some months after the lodging of the caveat in 2012. Under cross-examination, Mr Wallace denied that, prior to the lodging of the caveat, the sexual relationship had come to an end and never resumed.  That line of cross-examination was not taken any further. There was in evidence a photograph taken by a friend, Ms N, in 2018 of Ms Lane and Mr Wallace being physically affectionate, with Ms Lane leaning in close to Mr Wallace, as well as other evidence about their physical affection. Given the significant difficulties with Ms Lane’s credibility, I prefer the evidence of Mr Wallace that they remained sexually intimate until 2021. Mr Wallace conceded that he had engaged in very occasional sex with other women. A relationship does not, of course, have to be monogamous in order to be a de facto relationship. 

24. Mr Wallace’s sister and brother-in-law gave affidavit evidence that Mr Wallace and Ms Lane shared a bed in New Zealand when staying at their house in 2021. Both witnesses were cross‑examined on that point, but both held to their evidence and I believed them.  Ms J also deposed at paragraph 25 of her affidavit filed 22 August 2024 that she observed Ms Lane holding Mr Wallace’s hand during the New Zealand trip, that the parties were affectionate with one another and stated that she “did not observe anything between them that would suggest they had separated”. This is relevant both to the intimacy of their relationship and to the public perception of their relationship. 

25. There were a number of people, including family members, who gave evidence that they regarded Ms Lane and Mr Wallace as a couple after 2013.  That evidence goes both to the public and reputational aspects of the relationship, and also to whether Ms Lane is to be believed when she said that they did not remain mutually committed to a shared life.  I have dealt above with the evidence of the witnesses called in Ms Lane’s case.

26. Ms Lane communicated with Mr Wallace’s family in a way which was inconsistent with the de facto relationship having broken down in 2013.  For example, in 2018 she sent a photograph of her, Mr Wallace and two of her grandchildren (one held by each of them) to Mr Wallace’s sister Ms J with the text message: “We just had a family weekend away in [Region BB], was a lovely thing to do.  Might make it an annual event.  How’s everything in NZ?  All well I hope. Anything happening for […] birthday?  We thought we might make the jaunt if there is. xxx” (Exhibit A3).  

27. Exhibit A4 was a message from Mr Wallace’s sister, Ms M, who lives in New Zealand, to Ms Lane in 2021:

    Hi [Ms Lane], [j]ust thinking about you in this shitty COVID time, I hope you’re OK without [Mr Wallace], and I wanted to let you know how grateful we are that he was with [Mr JJ], as Mum was dying.  It meant we could connect and communicate with relative ease.  Take care, Love [Ms M] (heart emojis).

28. There was evidence of other contact between Mr Wallace’s family and Ms Lane which was consistent not only with the proposition that Mr Wallace’s family held Ms Lane and Mr Wallace to be a couple, but also that Ms Lane did. Ms Lane sought out Zoom catch ups, as revealed during cross-examination (respondent’s answers italicised, emphasis not in original):

    So you wanted to catch up with [Ms J] over Zoom.  Is that right? I mainly wanted [Mr Wallace] to catch up with his mother over Zoom because she was quite elderly and he wasn’t able to go over there and he doesn’t know how to connect to Zoom. 

    Okay.  So you’re still communicating with [Mr Wallace’s] family on his behalf? No, no.  He was – I only – it was only when he was doing it. 

    Yes.  But what I’m asking you is were you helping [Mr Wallace]? Yes.  

    Okay.  And were you helping him connect with his family overseas? Yes, yes.  Of course. 

    So you’re still providing him with support? Yes. 

    And you’re still communicating with his family? I still liked them all. 

    Yes.  You still – let me finish the question, please.  You’re still communicating with his family on his behalf? Yes.  He’s not very good at communicating. 

    Okay.  The next one is the page 21. “Happy birthday, [Ms J].  Hope it was a good one.  Lots of treats and virtual hugs.  Sorry we missed the Zoom.  We both did some work today”. See that? Yes. 

    And you’re still sending joint texts, aren’t you? Yes, because it was to his family, yes. 

    Yes.  So [Ms Lane] and [Mr Wallace], this time, there’s three kisses.  Do you see that? Yes, I wrote that, yes. 

    Yes.  On his behalf? I wrote it – I wrote her a birthday wish myself     

    Yes? and signed it from both of us. 

    Yes.  Joint communication? Yes. 

    Jointly.  You’re communicating jointly on behalf of you and [Mr Wallace], aren’t you? Yes.  

    Page 23.  Have a look at that.  4 June 2020.  You’ve got to forgive my ignorance, but that’s a text message you send. We had a go at making terrazzo. 

    …

    What’s terrazzo? It’s a concrete bench. 

    Okay?  It’s a piece of concrete with aggregate in it, like, a polished concrete floor. 

    Okay.  So not a food product? No. 

    Okay.  So that’s you showing the terrazzo? Yes. 

    that “we”, meaning you and [Mr Wallace], had a go at making? Yes. 

    Okay.  And you’re sharing that? Well, this is COVID times.  It was a little bit different. 

    My question wasn’t asked yet.  You’re sharing that, something that you had jointly created, with [Mr Wallace’s] sister? Yes, that’s right. 

    And presumably you’re showing that – you might be a little bit proud of it.  Is that right? I always liked what he made, yes.  I was always impressed.  He was a very good maker. 

    “He” being [Mr Wallace]? Yes. (Transcript 6 November 2024, p.85 line 40 to p.87 line 15)

1. In one small further example, Ms Lane confirmed not only that she had cooked a birthday dinner for Mr Wallace in 2021, but also that she shared with Ms J that she was doing so.

2. It was not until March 2022 that Ms Lane sent a message advising Ms J that the relationship was over. The following exchange occurred during cross-examination (respondent’s answers italicised, emphasis not in the original):

   You tell her that you’re not coming over at Easter.  You say, “It’s over between [Mr Wallace] and I. I’m so upset and confused”? That’s right.

   Continued: “I will miss everybody”? That’s right.

   “[Ms Lane], kiss”? Yes.

   That’s the only time you sign off with [your] individual [name] in the text messages I’ve taken you to, isn’t it?  You either don’t sign off at all, or it’s [the names of both Ms Lane and Mr Wallace]? Okay, yes. 

   So of the ones I’ve taken you to, you accept that this is a distinction? Yes, sure.

   You’re signing off as a solitary person, aren’t you? Yes.

   Okay. So given you say that you separated in 2012, why did you wait over 10 years to tell [Ms J] that it was over between you and [Mr Wallace]? Why did it take you 10 years? I think [Ms J] knew that – I’m being indirect here – but I think   

   I’m asking you not what [Ms J] knew? Well, I can’t answer the question.

   Why did you wait 10 years to tell [Ms J] that it was either between you and [Mr Wallace]? I enjoy being a friend of that family. 

   Why did you wait 10 years to tell [Ms J] it was over between the two of you? I can’t answer the question. 

   The only logical explanation for sending a text in March 2023 is that you only just recently separated? I sent that message as a reply to an invitation to the mother’s memorial and I said that I wasn’t going to be coming because he didn’t want to be my friend anymore. 

   Well, you had turned up to other things in New Zealand, hadn’t you? But in February 22, he came back and said he never wanted to see me again. 

   See, you waited so long – well, I withdraw that. The only rational explanation I’m putting to you is that it was a recent separation. When you sent that text, it was a recent separation? It was the end of the friendship with all of them. He had made that clear in February 22 when he came back[…].

   Yes. I put something wrong to you and I need to correct it. 2022. So that text was sent in March 2022? Yes.

   It doesn’t change anything else I put to you? No, no, no. That’s correct, yes.

   I’m suggesting when you sent it in March 2022, it was a very recent separation?

   HER HONOUR: What’s your answer, please? We weren’t a couple for a long time, but we remain friends and that was a response to his mother’s invitation to his mother’s memorial. (Transcript 6 November 2025, p.90 line 10 to p.91 line 20)

3. The messages and communications between Ms Lane and Mr Wallace’s family members support that both she and they regarded Ms Lane and Mr Wallace as members of a couple through the period when Ms Lane now tells the Court that they were not.

4. I accept that there was a dispute between Ms Lane and Mr Wallace during the period from late 2012 to early 2013 which had the potential to lead to the breakdown of the relationship. The email which was Exhibit A2 did not support that the relationship broke down in March 2013, although it was clearly in difficulty. Mr Wallace gave evidence that the relationship was in such a state, and recalled confiding in Mr E with words to the effect of “’[o]ur relationship might be in trouble’” (Mr Wallace’s affidavit in reply, paragraph 27).  I accept his evidence that he and Ms Lane “worked through our problems and remained in a relationship” (Mr Wallace’s affidavit in reply, paragraph 27).

5. Given Ms Lane’s consent to the matter proceeding irrespective of the standard application period, nothing turns on whether the relationship broke down in mid-2021 (as Ms Lane initially claimed) or in February 2022 (as Mr Wallace claimed).  The de facto relationship continued until at least mid-2021. 

6. For the reasons set out above, I am satisfied that the parties were in a de facto relationship until at least July 2021, when Mr Wallace left the Suburb C home to look after his brother.

7. While I accept the submission of counsel for Ms Lane that the classification of relationships is not a straightforward exercise, and that there will reasonably be room for argument in a particular case, that was not so here. Ms Lane’s position that the parties’ de facto relationship came to an end in 2013 was one which I find she took to try to advance her case that there be no adjustment.  It undermined her credibility.

   PROPERTY ADJUSTMENT

   Approach

8. The legislative provisions which set out the matters relevant to whether I should make an order adjusting the property interests of parties to a former de facto relationship and, if I decide to do so, the matters relevant to how I should exercise that discretion, are contained in Part VIIIAB of the Act, and in particular in ss 90SM(1)-(4) and 90SF(3).

9. In determining claims under Part VIIIAB of the Act for alteration of property interests between parties to a de facto relationship which has broken down, I am required to:

   (1)Identify and decide the value of the property (including superannuation), liabilities, and financial resources of the parties, or either of them, at the time of the final hearing, and determine the existing legal and equitable interests of the parties in such property.

   (2)Decide whether it is just and equitable to adjust the parties’ existing legal and equitable interests in property.  This must involve a principled application of judicial discretion and must not be approached by beginning from the assumption that “one or the other party has the right to have the property of the parties divided between them…” (Stanford at [38], [40]). This is not a “threshold issue” and would usually include (but not be confined to) a consideration of relevant contributions (s 90SM(4)(a)-(c)) and other matters relevant to what order is made (s 90SM(4)(d)-(g), including matters in s 90SF(3)). Notwithstanding that it is not a threshold issue, a decision about whether it is just and equitable to make an order at all should generally be made before contributions and other factors are evaluated in percentage or money terms (Bevan & Bevan (2013) FLC 93-545 (“Bevan”), at [89]). Hence, this is sometimes described as a “preliminary question”.

   (3)Identify, consider and assess the financial and non-financial contributions by the parties or on their behalf to the acquisition, conservation and/or improvement of property and any contributions to the welfare of the family.  If I have decided it is just and equitable to alter the parties’ interests in property, I would usually then determine a percentage allocation based on contributions at this stage. 

   (4)Identify, consider and assess the further matters set out in s 90SM(4)(d)-(g), including any relevant considerations under s 90SF(3) and decide whether there should be any further adjustment on account of those considerations to either of the parties from the percentage allocation based on contributions. Any further percentage adjustment should be considered in terms of its “dollar impact” on the outcome.

   (5)Ensure that any order made is just and equitable, including by reference to the particular assets to be retained or received by the parties and the overall effect of the order.

   Property of the parties

10. By the conclusion of the hearing, the parties had agreed to a joint Balance Sheet (later revised to correct several errors). 

11. Both parties endorsed a “two pool” approach, whereby Mr Wallace’s inheritance around the time of separation was in a separate pool.  They went further and agreed that it should be disregarded and not taken into account in any way.  Counsel for Ms Lane submitted that the garage in Mr Wallace’s sole name should also be disregarded, but counsel for Mr Wallace conceded that, if an adjustment was to be made, it should take account of Mr Wallace’s ownership of that asset.

12. One of the difficulties for me on the evidence is identifying what constitutes Mr Wallace’s inheritance within the agreed joint Balance Sheet.  I was not addressed on this aspect.  It is clear that the funds at row 14 of the agreed Balance Sheet are his inheritance – being $114,207.  In addition, Mr Wallace gave evidence that he had paid some of his legal fees from his inheritance, but as the parties have agreed to the add-backs of legal fees, I do not need to identify and separate out what, if any, of those fees have been paid from that source. There was evidence that some of the funds held in Mr Wallace’s bank account (item 13) were from the inheritance. 

13. Ultimately, given the parties’ approach to this issue and the lack of evidence that enables me to determine what else is attributable to the inheritance, I am satisfied that it is appropriate for me to put the funds which are at item 14 of the Joint Balance Sheet, and only those funds, into a separate pool and – given the parties’ agreement – effectively disregard them.

14. The Balance Sheet which shows Pool 1 is therefore:

ASSETS
Ownership		Description	Agreed Estimated Value
1	W	B Street, Suburb C - as per jointly appointed expert report dated 24	$2,900,000
2	H	S Street, Suburb H (garage) - as per jointly appointed expert report dated 24	$160,000
3	W	CBA Account #41 as at 24	$895
4	W	GG shares @ $2.18/share (as at 24)	$9,832
5	W	HH shares @ $7.21/share (as at 24)	$18,198
6	W	KK shares @ $4.81/share (as at 24)	$3,428
7	H	ANZ Account #16 as at 24	$4,843
8	H	ANZ Account #21 as at 24	$4,848
9	H	CBA Account #13 as at 24	$724
10	H	Office equipment and tools; estimated	$5,000
11	H	Motor Vehicle 1; estimated	$10,000
12	W	Contents including artworks and antiques; estimated	$5,000
13	H	CBA Account #21 as at 24	$30,014
Total		$3,152,782

ADD-BACKS
Ownership		Description	Agreed Estimated Value
14	H	Applicant’s legal fees	$236,532
15	W	Respondent’s legal fees	$164,612
Total		$401,144

LIABILITIES
Ownership		Description	Agreed Estimated Value
16	W	Westpac loan #86 as at 24	$104,187
17	W	ANZ Visa card #27 as at 24	$5,755
18	H	ANZ Visa card #44 (formerly #12) as at 24	$15
19	W	Loan from Mr E in 24	$60,000
Total		$169,957

FINANCIAL RESOURCES
Ownership		Description	Agreed Estimated Value
20
Total		$0

SUPERANNUATION
Member		Name of Fund	Type of Interest	Agreed Estimated Value
21
Total		$0

NET TOTAL ASSETS (including superannuation)	Value
Total Assets	$3,152,782
Total Add-backs	$401,144
Total Liabilities	$169,957
Total Financial Resources	$0
Total Superannuation	$0
NET TOTAL	$3,383,969

1. Neither of the parties have any remaining superannuation, nor financial resources.

2. Pool 2 consists of the remaining inherited funds held in a New Zealand bank account on behalf of Mr Wallace, being an amount of $114,207.

3. On the assumption that the Suburb C property is sold, the net total of the assets in the main pool is then $588,156, plus whatever the Suburb C property sells for, less sale costs, legal costs and disbursements and the mortgage loan with an agreed value of $104,187. Of the $588,156, Ms Lane has net assets, including add-backs, with a value of $136,210 and Mr Wallace has net assets, including add-backs, with a value of $451,946.

   Is it just and equitable to adjust the parties’ property interests?

4. I am required to determine whether it is just and equitable to make a property adjustment (“the s 90SM(3) inquiry”).  It is Ms Lane’s case that it is not.

5. In general, a consideration of the s 90SM factors (contributions, future needs and other matters) will be “informative of the s 90SM(3) inquiry” (Cosola & Moretto (2023) FLC 94-143 at [42] and see also Costello & Langdon [2024] FedCFamC1A 168), although not conclusive. Matters apart from the s 90SM factors (including the matters in s 90SF(3)) are relevant to a decision about whether it is just and equitable to adjust the parties’ property interests, and it is not possible to chart the “metes and bounds” of those matters (Stanford at [36]). Relevant matters include disparities in the parties’ financial circumstances and “the duration of the de facto relationship and the extent to which it has affected the earning capacity of a party” (s 90SF(3)(k)). The longer a relationship, the more likely it will be just and equitable to adjust property interests, but this is because the length of the relationship is likely to correlate with more significant contributions, greater financial dependence and interdependence and other matters of relevance, rather than being relevant in and of itself.

6. The requirement for it to be just and equitable to adjust interests in property will often be “readily satisfied” in circumstances where the parties or one of them has decided to end the relationship, because there will no longer be common use of property, and where “the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship” (Stanford at [42]).

7. Ms Lane would have me make an order – after what I have found was a de facto relationship of more than 30 years – that would see Mr Wallace receive nothing but the remainder of his inheritance and a garage worth $160,000 and which would see her retain a property worth $2,900,000 with a modest debt. This in circumstances where Mr Wallace now has no permanent home, having left the property where he and Ms Lane resided together for 18 years, and where, as I have found below, he has made significant contributions over a very long relationship, including to that property, and where he is now retired and without any superannuation.  He would have no obvious way to purchase another home. These appear to be the classic circumstances in which the High Court said that the preliminary question will be readily satisfied.

8. There was, however, a focus in Ms Lane’s case on what she said were agreements or understandings between the parties that each would keep what they have, and, in particular, that she would retain the Suburb C property free from any claim by Mr Wallace.  Part of her evidence on this point was what she said was a lack of intermingling of the parties’ finances, and the payment by Mr Wallace of “rent” from 2013.

9. It is certainly the case that the parties’ stated or implied assumptions or agreements about their financial affairs during the relationship should not be departed from, other than on a principled basis (Stanford at [41]). To be potentially relevant, however, to the question of whether an adjustment should be made, any assumptions or agreements which informed how the parties dealt with their property and finances during the relationship and what they would do if they separated must be “mutual” and “informed and truly consensual”. Only if that is the case will they “potentially inform whether it is just and equitable to make any order altering property” (Oamra & Williams (2021) FLC 94-035 at [36]). In other words, a unilateral “refusal to share” is unlikely to be relevant to the decision.

10. It was not in contest that:

    (1)The Suburb C property was bought in Ms Lane’s sole name. 

    (2)In 2012, Mr Wallace lodged a caveat over the Suburb C property.

    (3)Ms Lane engaged lawyers to have the caveat removed and filed a lapsing notice.

    (4)Mr Wallace had an agreement drawn up about the conditions on which he would withdraw a caveat lodged over the Suburb C property which he asked Ms Lane to sign. It provided for him to receive a percentage of the proceeds in the event the Suburb C property was sold.  She did not sign it. This unsigned agreement became Exhibit R9.

    (5)Subsequently, the caveat lapsed.

11. Ms Lane’s evidence was to the effect that:

    (1)Early in the relationship, she and Mr Wallace had entered into an agreement that each would keep what they had. They signed an agreement prepared by a lawyer. That agreement disappeared from her records in 2022.

    (2)After the removal of the caveat which Mr Wallace lodged over the Suburb C property in 2012, she and Mr Wallace had reached an agreement that he would pay her “rent” to live in the Suburb C property and after that, they were effectively landlord and tenant.

    (3)She and Mr Wallace did not intermingle finances except for a joint bank account which was closed in 2013.

    (4)She made two Wills which nominated her children as her beneficiaries and excluded Mr Wallace.

12. Mr Wallace’s evidence was to the effect that:

    (1)Early in the relationship, Ms Lane told him she was going to get an agreement drawn up, but he neither saw nor signed an agreement.

    (2)The parties bought the Suburb C property in Ms Lane’s sole name because he was in business, so it was an “asset protection” strategy. 

    (3)There was no agreement or discussion between them about him paying “rent”.  From 2013, he made regular payments to the mortgage loan account.

    (4)The parties shared expenses for the whole of the relationship.  He was the primary income earner, other than during the years 2011-2013, and contributed towards the household expenses.  Until 2013, the parties had a joint bank account into which his income was deposited, and which Ms Lane used as she wished.  From 2013, they had separate bank accounts, but he continued to contribute towards household expenses.

    (5)He did not discuss Ms Lane’s Will with her.

13. The evidence does not support the conclusion that the parties ever had an agreement that they would each keep what they have in the event they separated.  Ms Lane gave evidence that the parties signed an agreement to that effect in 1995 but that it “went missing from my files in 2022” (Ms Lane’s affidavit, paragraph 17).  Mr Wallace gave evidence that Ms Lane told him in about 1995 that she wanted to have a lawyer draft an agreement, but that he was not aware of that having been progressed and did not see or sign such a document (Mr Wallace’s affidavit in reply, paragraph 14).  Further “[t]he first time [Ms Lane] has raised in these proceedings the suggestion there was a Binding Financial Agreement was in her Affidavit” (Mr Wallace’s Affidavit in Reply, paragraph 14).  Ms V gave evidence that Ms Lane said to her “’[w]e signed a document.  He agrees the house is mine’” (affidavit of Ms V, paragraph 11).  None of this evidence was tested in cross-examination.  Ms V had also given evidence that Ms Lane had told her “I’m paying for all of the mortgage, renovations and bills” (affidavit of Ms V, paragraph 11). Whilst I accept Ms Lane said that to Ms V, it was plainly not the case. 

14. It is inherently unlikely that Ms Lane would have recalled there being an agreement to this effect in her possession (until an unfruitful search in 2022 indicated otherwise), but nevertheless then chose to not raise its existence except in her trial affidavit.  Further, the evidence was that Ms Lane expressed concern to friends and family about Mr Wallace making a claim in respect of the Suburb C property.  Fellow B Street resident and friend of Ms Lane, Ms Y, at paragraph 13 of her affidavit deposes that “[a]bout 15 years ago, [Ms Lane] said to me ’I have kept every receipt relating to this house, as I’m concerned [Mr Wallace] is going to make a claim on the house’”. That is not consistent with Ms Lane knowing that she had an agreement on file to the effect that he would not, but I bear in mind that this was not put to Ms Lane in cross-examination and she may have had an explanation. 

15. Mr Wallace had made it clear in various ways that he believed he was entitled to a share of the Suburb C property.  In particular, he had lodged a caveat in 2012, and then sought Ms Lane’s agreement that he would receive a percentage of the net proceeds of sale of the Suburb C property if it was sold as a condition of him withdrawing the caveat and agreeing not to lodge another one.  That agreement (which was not signed by either party) became Exhibit R9.  Ms Lane was clearly alive to the possibility that Mr Wallace would make such a claim.

1. I accept that there were and remain difficulties in the relationships between Mr Wallace, Ms D and Mr E.  Mr Wallace did not do as much for Ms D and Mr E as some people living with a child’s parent would have done. For Mr Wallace, that was in the context that they were very well-supported by their father Mr F. It cannot, however, be said that Mr Wallace did nothing for Ms Lane’s children. Ms Lane conceded that from time to time, Mr Wallace was present in the home when her children were present and she was not.  She also conceded that, given she did not drive, Mr Wallace would give the children a lift somewhere on occasion.  Mr Wallace’s financial contributions to the household were clearly also of benefit to Ms Lane’s children – or at least to her.  Ms Lane was concerned to minimise the concessions she made, and, given the issues I have with her credibility, I find that it is likely Mr Wallace did more than she was prepared to concede. 

2. Nonetheless, given the authorities and the fact that a s 90SF(3)(r) adjustment was specifically not sought, when assessing either party’s contributions, I do not attach any significance to the fact that, for the early years of the relationship, the household in which Mr Wallace and Ms Lane lived included Ms Lane’s two children when they were not living with their father.

   What contributions did each of Ms Lane and Mr Wallace make towards the G Street property?

3. Ms Lane co-owned the G Street property with her children’s father, Mr F, at the time her relationship with Mr Wallace commenced in 1990.  She had a 70 per cent share in that property (although her evidence was that she received 80 per cent of the net proceeds when it was sold).  There is no evidence of any weight about the value of her equity in the G Street property at the commencement of her relationship with Mr Wallace. There was a mortgage loan secured over the property which Mr F paid until Mr Wallace moved in.  Ms Lane and Mr F were the mortgagors.

4. A significant aspect of the parties’ contributions were the contributions made by Mr F on behalf of Ms Lane, during the sixteen years when she and Mr Wallace were living together in the G Street property. While Mr F stopped making the mortgage loan payments soon after Mr Wallace moved into the property, he forewent realising his interest in the property until his youngest child reached the age of 22.  That meant that Ms Lane was able to contribute the sum of approximately $630,000 to the purchase of the Suburb C property.  As I set out below, Mr F also made some financial contributions to the renovation of the G Street property.  He also assisted in the purchase of the Suburb C property by paying the deposit (which was later repaid to him).  These were contributions on behalf of Ms Lane.   

5. After Mr Wallace moved into the G Street property, he and Ms Lane worked together to renovate it.  Mr Wallace was responsible for parts of that work.  Mr Wallace gave evidence that, during the first stage, Mr F paid for employed labourers to assist with the work, paid for the majority of the materials, and paid Mr Wallace for his work. Mr Wallace’s evidence was that these payments were made to him at the request of Ms Lane, and that the amount was $200 a week, which he said was well under what he would normally charge.  He also gave evidence that he paid for “smaller material and bits and pieces” (Mr Wallace’s affidavit, paragraph 78(b)(iv)).  Mr Wallace gave evidence that the second stage of the renovations was largely his own work and he paid for most of the materials (Mr Wallace’s affidavit, paragraph 78(b)(v)-(ix)).  Mr Wallace gave evidence about other works that he did on the G Street property.

6. Mr Wallace conceded that some of the work carried out on the G Street property was undertaken without council approval (Transcript 4 November 2024, p. 23 line 40-45), but nothing turns on that. Ms Lane conceded in cross-examination that Mr Wallace had done the work to the G Street property that he said he did (Transcript 6 November 2024, p.97 lines 10‑20, p.99 line 40 to p.100 line 5).

   What contributions did each of Ms Lane and Mr Wallace make towards the Suburb C property?

7. Ms Lane conceded under cross-examination that, at the time of purchase, the Suburb C property was in a very poor state.  She denied being aware that Mr Wallace had made payments towards the renovations of the property.  She gave evidence that she paid for a surveyor to survey the property, but, when shown a bank statement which became Exhibit A9, conceded that a surveyor had been paid by Mr Wallace. She accepted that bank statements which became Exhibit A10 showed that Mr Wallace had made payments for various items for the Suburb C property as late as May 2020.  She gave evidence that she paid for the dishwasher at the Suburb C property, but a bank statement which became Exhibit A11 showed the purchase of a dishwasher by Mr Wallace.

8. The Suburb C property was in bad condition when it was purchased, and Mr Wallace again carried out significant work on the property, about which he gave detailed evidence at paragraphs 92-102 of his affidavit.  That evidence was not seriously challenged, and I accept it.  I also accept Mr Wallace’s evidence, given under cross-examination, that (Transcript 5 November 2024, p.10 lines 35-40):

   There was – the house was decrepit when we moved in.  And there were certain things that needed to be done in order to make it more liveable.  Now, when something got to a certain stage, it didn’t necessarily mean that it could be completed because there might have been other tasks needed to be completed before that could.  But there were more important things to get on with to make the house liveable.  It was a work in progress, the whole thing.  

9. Given her very modest income from paid work – which was not more than $30,000 a year – it is difficult to see how, at that time, Ms Lane would have been able to pay for that work to be carried out.

10. Much time was devoted in cross-examination to the issue of the quality of the work Mr Wallace carried out on the Suburb C property.  Photographs of the Suburb C property were tendered and became Exhibits R6, R7, R10, R11 and R12.  When these photographs were shown to him, Mr Wallace readily accepted that some of the work remained unfinished.  The valuer’s report did not raise any issues consistent with a conclusion that the work done by Mr Wallace was of poor quality. I accept Mr Wallace’s evidence that he had nothing to do with certain aspects of the renovations, and that the need to repair the property’s roof was brought about by renovations he had not undertaken (Transcript 5 November 2024, p.11 lines 5-15).

11. Photographs which became A16 were Instagram posts by Ms Lane in 2018-2021, in which she documented the renovations with evident pride. 

12. The following exchange occurred in cross-examination.  It was an example, among others, of where Ms Lane’s affidavit evidence had been tailored to try to achieve the outcome that she wanted – rather than being the whole truth (respondent’s answers italicised, emphasis not in original): 

    Okay, well here’s your chance. You say it’s a lovely home. You say he did do good things. None of it’s in your affidavit. Are you able – I’m not asking for war and peace, but just tell her Honour some of the positives? He did a nice job of finishing off the stairs through the middle of the house […] which he added handrails and balustrades to.  He cleaned the dining room floor back with a floor sander so we could keep the original floorboards.  He built a small bookcase next to the fireplace in the dining room from recycled materials.  He installed a flexible flue in the fireplace to instal a gas log fire that I’ve been given.  That’s not really anything visible, but it’s good for the house.  Certainly, a good feature for the house.  He organised stonemason to do the chimney which needed replacing on the exterior of the house […]  The suspended slab for the garage has made an improvement to the property (Transcript 6 November 2024, p. 97 lines 35-45)

13. I find that Mr Wallace made significant non-financial contributions to the Suburb C property, including contributions which made the property more liveable.  I accept the submission of counsel for Ms Lane that the increase in the value of the Suburb C property can be largely attributed to factors other than the improvements carried out.  That is largely beside the point.  Ms Lane also contributed to these improvements.

14. During the period 2013 to 2021, the mortgage loan balance reduced from approximately $99,000 to less than $10,000.  There were some significant withdrawals of funds during that time.  They must have been by Ms Lane, as Mr Wallace was not challenged about his evidence that he did not have access to the redraw facility and never withdrew money from the mortgage account (Mr Wallace’s affidavit in reply, paragraph 44).  From 2013 he commenced making regular contributions towards the mortgage loan secured over the Suburb C property.  After about October 2014, the only regular payments were made by Mr Wallace.  Prior to that Ms Lane made regular payments to the mortgage loan, although that loan was only ever modest. 

15. In January 2020, Ms Lane deposited to the Suburb C mortgage loan account $26,000 which were the matured funds from a term deposit established with monies which Mr E inherited and gave to his mother in lieu of rent.  She also made an additional deposit of $50,000 in April 2020, which was the product of Ms Lane cashing in some shares and withdrawing the balance of her superannuation.  It was not clear from the evidence, but it may be that the shares were part of her inheritance from her mother. There was no evidence that the superannuation was acquired prior to the relationship.

16. Ms Lane has had the benefit of living alone in the Suburb C property since July 2021, but also borne the responsibility of the care and maintenance of the property, and payment of expenses associated with it- including, presumably, the rates.  The mortgage loan has increased since separation.  Those funds appear to have been applied largely to legal fees and are included in the Balance Sheet as add-backs.

    What were the parties’ other respective financial contributions?

17. Mr Wallace worked as a tradesman in his own business throughout the relationship.  He had a medical episode in 2010 and had some time off work, and then returned to work gradually. Ms Lane was employed in retail. She ceased paid work in 2019.

18. Mr Wallace’s taxable income was relatively modest, but reflected that there were significant business expenses and deductions.

19. Ms Lane’s taxable income was less than $30,000 for the financial years 2017-19 and less than $5,000 for 2020 and 2021.

20. I find that Mr Wallace was the primary income earner for most of the relationship, although his taxable income was minimal for the years 2011-2013.

21. Ms Lane’s evidence that Mr Wallace’s financial contributions to the household had been minimal was undermined in cross-examination. I have referred above to Exhibit A7, being an Internet Home Loan Application by Ms Lane dated 2006 for finance to purchase the Suburb C property.

22. Ms Lane was asked about that statement in cross-examination (respondent’s answers italicised, emphasis not in original):

    So, ma’am, my apologies if you’ve – I’m just putting to you that you provided that data to the bank in association with your home loan application for [B Street] because, at that point in time, the household was run from [Mr Wallace’s] funds; you accept that, don’t you? No.

    Okay. So do you say to the court that you were dishonest with the Commonwealth Bank or whichever bank, my apologies, it was? Do you say to the court that you were dishonest with the bank?  No, I wasn’t dishonest with the bank.

    Okay. So you don’t have an explanation, do you? No. 

     as to why the bank records in 2006 or thereabouts appear to quote you as saying that the household is run from that source, namely, [Mr Wallace]? Yes.

    Nowhere in your affidavit evidence do you ever concede that Mr Wallace’s earnings were what funded the household, do you? That’s correct.

    Nowhere in any of your formal pleadings, like the financial questionnaire, the financial statement, none of that, nowhere in those documents do you accept that the household was run from, or sourced from, [Mr Wallace’s] earnings, do you? That’s correct.

    And so the only place we find this is in that document which is the home loan application that I’ve just taken you to. That’s right, isn’t it? That’s correct. It’s there. (Transcript 6 November 2024, p.47, lines 20-45) 

23. Ms Lane gave evidence that she had paid outgoings for the Suburb C property, including power and gas.  When bank statements were put to her, she had to concede that Mr Wallace had made multiple payments for power and gas, and further that he had paid for the couple’s health insurance policy until 2022.  She also conceded that Mr Wallace bought groceries for the household at times, that she used his account for online shopping during COVID-19, and that he paid for a streaming service.

24. Mr Wallace brought some assets into the relationship – including a one third interest in one rural block and a half interest in another, some tools and a motor vehicle. There was no evidence about what was done with the proceeds of sale of the rural blocks.  It was conceded they were modest – approximately $17,000.

25. Ms Lane brought into the relationship the equity she had in the G Street property, which she jointly owned with Mr F.  She made payments on the mortgage loan from about 1992 until the property was sold in 2006.  The parties lived there together, and I have made findings above about the significant contributions Mr Wallace made to the improvement and renovation of the G Street property.  Mr Wallace’s income was also used to pay expenses for the household during the period the parties lived at the G Street property. 

26. Mr Wallace’s income continued to be applied to household expenses, although he apparently received very little income in the years 2011-2013.  Ms Lane received modest income from paid employment throughout the relationship until 2019.  She applied that income to household expenses.

27. Ms Lane received two inheritances – one of $40,000 in the late 1990s, and one of around $45,000 and some shares of unknown value in 2008.  In 2008, she borrowed $100,000 from her mother and put it into a joint account.  This enabled Mr Wallace to obtain insurance for his business. There was no evidence about what was ultimately done with this money, other than it was never returned to Ms Lane’s mother and formed part of Ms Lane’s inheritance from her mother.  

28. Mr Wallace received $50,000 from his mother in 2020, which he used, along with savings, to purchase the garage. Mr Wallace inherited $AUD 410,000 from his mother around the time of separation.  Some of those funds (approximately $114,000) are, by agreement, effectively quarantined and so it is not appropriate to count his contribution of those funds.  Some were spent on post-separation living expenses, and I should therefore not take account of those as contributions.   However, some were spent on legal fees and included in the Balance Sheet as “add-backs” and some are in his bank account, the balance of which is in the Balance Sheet. The inheritance is therefore a relevant, modest, contribution on his behalf to the property which is constituted by Pool 1.

    Evaluation of contributions

29. Ms Lane has made significant contributions to the parties’ property which are not matched by Mr Wallace’s, in that:

    (1)she brought the G Street property with some equity into the relationship and ultimately (partly as a result of her former husband not realising his equity in the G Street property until 2006), she realised $630,000 from its sale, and applied this amount to the purchase of the Suburb C property;

    (2)her former husband, Mr F, contributed to the improvement of the G Street property and lent her the funds for the deposit on the Suburb C property:

    (3)Ms Lane was the mortgagor (together with Mr F until 2006) in respect of the G Street and Suburb C properties.

30. These contributions have constituted the ‘springboard’ for the parties’ current financial situation because they enabled the purchase of the Suburb C property, which is now the parties’ only significant asset, and has increased substantially in value since it was purchased.  Appropriate weight must be attached to these contributions, notwithstanding that – except for Ms Lane’s contribution as the mortgagor of the Suburb C property, which continues – they were made many years ago.

31. Mr Wallace’s initial contributions were very modest, were apparently not applied to any property and, after such a long relationship, do not have an impact on my assessment of the parties’ respective contributions.

32. Ms Lane’s contributions must, however, be weighed with the myriad of contributions made by Mr Wallace over more than 30 years. Though, somewhat uncommonly for long relationships, they do not include contributions by way of parenting, they do include the significant contributions to the improvement and renovation of both the G Street and Suburb C properties which I have identified above. 

33. It is difficult to see how Ms Lane would have been able to retain and improve the Suburb C property without Mr Wallace’s contributions.  Those contributions are both non-financial (by way of his work) and financial (by way of payments to the mortgage loan over the period 2013‑2022). 

34. Mr Wallace also made financial contributions to household expenses. He was the primary income earner for most of the relationship – although apparently earned almost nothing in 2011-2013.  Ms Lane did more of the housework and cooking, but in the early years of the relationship that was in the context that she had her own children to raise.  Both Ms Lane and Mr Wallace contributed to each other’s welfare including, in Mr Wallace’s case, by driving in circumstances where Ms Lane did not drive. Both parties received modest gifts and inheritances which roughly balance out. Mr Wallace received a larger, later inheritance, but some of that was spent on post-separation living expenses and some is excluded by agreement.  

35. The order sought by Mr Wallace – namely that he receives 45 per cent of the net proceeds of sale of Suburb C plus the garage – does not adequately recognise Ms Lane’s contribution of the G Street property.  Overall, and assessing the parties’ contributions over this long relationship holistically, I am satisfied that the parties’ respective contributions are appropriately recognised by a division of Pool 1 reflected in the Balance Sheet of 40 per cent to Mr Wallace and 60 per cent to Ms Lane. 

36. With his remaining inheritance (Pool 2), Mr Wallace will receive approximately 42 per cent on a one pool basis.  That appropriately reflects that Pool 2 was contributed solely by him and either around the time of, or after, separation.

    S 90SF(3) factors

37. This was a de facto relationship of very significant duration. The parties are of similar age and both retired. There was no submission that any factor in s 90SF(3) was relevant to my decision.

38. I have considered whether Mr Wallace’s retention of his remaining inheritance is a matter which warrants an adjustment in Ms Lane’s favour pursuant to s 90SF(3). It is a relatively modest amount and not a significant percentage of the parties’ assets. I have also considered the fact that, as a result of the contributions-based assessment, Ms Lane will have significantly more assets than Mr Wallace. I am satisfied that no further adjustment is just and equitable for s 90SF(3) factors.

    A JUST AND EQUITABLE ORDER

39. I am satisfied that the outcome of the contribution-assessment exercise represents a just and equitable outcome.  On the evidence before me it seems inevitable that the Suburb C property will need to be sold.  Mr Wallace’s counsel indicated to the Court, however, that Mr Wallace did not oppose Ms Lane being given a short period to try to borrow the money necessary for her to retain the property at the agreed value of $2,900,000 (or net $2,795,813).  If she is not able to do so, then the Suburb C property will be sold and the proceeds divided to achieve a 40/60 split of Pool 1. When the property is sold, both parties will have sufficient funds to purchase a new home if that is what they choose to do. 

1. I have made no provision for the payment of interest of the payment, as the orders I am making are effectively that the property be sold and the proceeds be distributed, rather than there being a payment and, in default, a sale.

2. The figure which Ms Lane would have to pay to Mr Wallace to retain the Suburb C property represents him receiving 40 per cent overall of a net pool of $3,383,970.  That requires that he receives a total of $1,353,588.  He already has net assets (including add-back of legal fees) of $451,946.  He therefore needs to receive the further sum of $901,642.  In the event Ms Lane cannot pay that sum within 60 days, the property will be sold and the net proceeds divided to achieve a 40/60 split of Pool 1.  As indicated above, the net pool less Suburb C (and excluding the remnant inheritance) is $588,156.  I have fixed the mortgage loan amount to be deducted at the agreed Balance Sheet figure of $104,187 to ensure that any changes to the mortgage loan amount do not affect what Mr Wallace receives- given that it is Ms Lane who is living in the property and paying the mortgage loan.  Similarly, I have not ordered that any rates adjustments be taken account in the amount Mr Wallace receives.

3. The ordered outcome is therefore represented by the requirement that the net proceeds of sale of Suburb C be divided such that Mr Wallace receives 40 per cent of the sum which is represented by:

   The sale price of the Suburb C property

   Less sale costs

   Less legal expenses associated with the sale

   Less $104,187 (the agreed value of the mortgage loan)

   Plus $588,156 (the balance of Pool 1)

   From that amount will be deducted the sum of $451,946 – which is what Mr Wallace already has of Pool 1, including add-backs.

I certify that the preceding one hundred and fifty-four (154) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Behrens.

Associate:

Dated:       21 February 2025