Beecham Group Ltd v Bristol Laboratories

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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These proceedings concern an application filed by the applicant wife, Ms Blom ('Ms Blom'), to proceed 'out of time' pursuant to section 44(3) of the Family Law Act 1975 (Cth) ('the Act') for an application for property settlement ('the application').
2. Ms Blom requires permission from the Court to bring an application for property settlement because she is approximately two and a half years out of time.
3. The application is opposed by the respondent husband, Mr Eaton , ('Mr Eaton').
4. The hearing for the 'out of time' issue proceeded on 4 and 5 December 2024. The hearing was adjourned by agreement to enable Mr Eaton to secure refinancing so that Ms Blom could be released from a mortgage and a personal guarantee. On 28 April 2025, the Court was advised that refinancing had been secured and Ms Blom was released from all liability for the mortgage.
5. For the reasons set out herein, the Court has determined that the application filed by Ms Blom shall be dismissed.

1. Ms Blom filed an Outline of Case Document (Interim Hearing) on 28 November 2024 which sets out at 'Part B' that she relies upon the following documents:

(1) Affidavit of Ms Blom (as she then was on the Court file) filed 17 October 2024;[1]

(2) Initiating Application for Final Orders filed 5 June 2024;[2]

(3) Financial Statement filed 5 June 2024; and

(4) Affidavit of Ms Blom filed 26 November 2024.

1. In addition, Ms Blom tendered and relied upon Exhibit W1. Ms Blom's Costs Notice was filed on 29 November 2024 pursuant to Rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ('the Rules').
2. Ms Blom provided a Tender Book. Order 1 of the Orders of 5 December 2024 sets out the pages of the Tender Book that she was given leave to rely upon at the hearing.
3. Mr Eaton filed an Outline of Case Document (Interim Hearing) on 28 November 2024 which sets out at 'Part B' that he relies upon the following documents:

(1) Response to Final Orders filed 11 July 2024;

(2) Financial Statement filed 11 July 2024;

(3) Genuine Steps Certificate filed 11 July 2024;

(4) Costs Notice filed 18 July 2024;

(5) Costs Notice filed 28 August 2024;

(6) Costs Notice filed 19 September 2024;

(7) Affidavit of Mr Eaton filed 19 November 2024; and

(8) Costs Notice filed 28 November 2024 pursuant to Rule 12.06 of the Rules.

1. In addition, Mr Eaton tendered and relied upon Exhibits H1 to H4 inclusive.

1. In her (Amended) Initiating Application for Final Orders filed 26 November 2024, Ms Blom sought a raft of interim orders including orders for disclosure and mediation.[3]
2. The primary order is that set out in paragraph 1 in which Ms Blom sought an order that she "be granted leave for these proceedings to be heard out of time."
3. In his Response to Initiating Application filed 5 June 2024, Mr Eaton sought a primary order that Ms Blom's application be dismissed and costs.[4]

1. Ms Blom's case is summarised in her Outline of Case Document from paragraphs 40 to 73 inclusive as follows:

(a) Ms Blom concedes that during their relationship the parties did not cohabit continuously but contends that they did so "for most of the period";

(b) That during the relationship, she made "substantial" financial and "significantly" greater non-financial contributions than that of Mr Eaton;

(c) That the joint loan obtained by the parties during the relationship should be regarded as equal contributions by the parties;

(d) That the sums of money paid by Mr Eaton to Ms Blom following separation simply "reimbursed" her for a motor vehicle compensation settlement amount that she had received in 2018;

(e) There was never any informal property settlement agreement reached in 2019 nor at any other time;

(f) The sums of money paid by Mr Eaton to Ms Blom post-separation did not bring to account the length of the relationship, her financial contributions, Ms Blom's greater non-financial contributions and future needs. Further, it did not bring to account the parties' superannuation entitlements nor Ms Blom acting as guarantor for the mortgage loan secured over the property situate at B Street, City C in the state of South Australia ('the City C property').

(g) The assets and superannuation retained by Ms Blom following separation did not reflect a just and equitable division of the combined assets and superannuation of the parties; and

(h) That during cohabitation Ms Blom was

"subjected to family violence perpetrated by the respondent [Mr Eaton], which is relevant to the assessment of her contributions and also to her explanation for not commencing proceedings within the prescribed time. Such conduct included but was not limited to coercive control, financial control, psychological and emotional abuse, threats, derogatory taunts, and exposure to family violence upon the applicant witnessing her son and others being subjected to physical violence at the hands of the respondent [Mr Eaton]."[5]

1. It was because of the very serious allegations of family violence as set out above, that the Court determined to hear oral evidence from the parties at the hearing, which is interim in nature.

1. Mr Eaton's position as set out in his Outline of Case Document can be summarised as follows:

(a) Ms Blom does not satisfy the threshold requirement that she demonstrate hardship would be caused to her if leave were refused and, therefore, the Court's discretion to grant leave to bring an application is not enlivened;

(b) In the alternative, if the Court's discretion is enlivened then the application for leave should nevertheless be refused on discretionary grounds including (but not limited to) the lack of proper explanation for delay, the prejudice to Mr Eaton if leave were granted and the poor prospects of any claim by Ms Blom;[6]

(c) Ms Blom has inflated the financial contributions alleged by her and that the parties had largely maintained separate finances during their relationship;

(d) The parties made similar non-financial contributions noting that the parties did not cohabit at the same residence throughout the period of the relationship and had several periods where they lived apart;

(e) Ms Blom has received benefits from the relationship including a financial benefit to her then teenage son;

(f) That at the date of separation, Ms Blom held net non-superannuation assets of $55,412 while Mr Eaton held net non-superannuation assets of $98,995. The increase in Mr Eaton's base financial position since separation has been brought about by the increased value in the property situate at D Street, Suburb E in the state of South Australia ('the Suburb E property') and a reduction in Mr Eaton's liabilities;

(g) Ms Blom has re-partnered and purchased a home with her new husband. Ms Blom has failed to provide any evidence regarding her new marital financial circumstances;

(h) If leave was granted, the likely range of outcomes for Ms Blom lay between no adjustment at all through to a small adjustment in her favour. At best and assuming that Ms Blom's allegations were proven at Trial, then she could receive an adjustment in her favour representing 5 to 20 per cent of the net non-superannuation asset pool representing a payment to Ms Blom of somewhere between $25,000 to $100,000 on her figures;

(i) To the extent that Ms Blom's Trial material implied an adjustment for a Kennon-type claim,[7] the alleged conduct fell far short of the type of conduct which might enliven such an adjustment;

(j) The costs arising from Ms Blom's proposed claim would inevitably be disproportionate and overwhelming which was relevant to any potential benefit to her, bringing to account the legal fees paid by her up to the date of hearing and her anticipated future costs. At the date of hearing, the Cost Notices filed by each of the parties showed combined costs incurred of approximately $140,000 and if leave was granted, likely anticipated combined legal costs were approximately $260,000. Costs in this range were said to be "out of all proportion to the likely outcomes if the claim is allowed to proceed";[8] and

(k) In the alternative and if the Court concludes that hardship is established, Mr Eaton argued that leave should be refused in circumstances where:

(i) Ms Blom had failed to provide any real explanation for her failure to bring proceedings within the statutory time period;

(ii) The period of the delay is significant being two years and seven months out of time from the date of divorce;

(iii) There would be a prejudice to Mr Eaton in circumstances where Ms Blom now sought to take advantage of the passage of time to endeavour to make a claim on a much larger asset pool which had increased since separation; and

(iv) Mr Eaton would be forced to incur very substantial costs given that he had understood that the parties had finalised their financial affairs.

1. Ms Blom is aged 53 years and Mr Eaton aged 52 years of age.
2. After forming a relationship in 2004, the parties commenced periodic cohabitation from 2005. They did not commence a permanent cohabitation until 2012 and were married in 2013.
3. Ms Blom alleges that the parties separated on 12 January 2019 and Mr Eaton alleges the parties separated on 21 February 2019.
4. There are no children of the relationship. Ms Blom has one adult child from a previous relationship, namely Mr F (born in 1997) ('Mr F').
5. The parties jointly provided a 'List of Agreed Facts' which set out the matters agreed as follows:
   1. In 2005:
      • 2.1. the Respondent owned the [Suburb E] Property;
      • 2.2. the Respondent owned the [Suburb G] Property;
      • 2.3. the Applicant had made no direct or indirect financial or non-financial contribution to the acquisition of the [Suburb E] Property or the [Suburb G] Property.
   2. During the course of the relationship the Respondent sold the [Suburb G] Property and applied the net proceeds of sale to partially fund the construction of a new dwelling at the [Suburb E] Property.
   3. In September 2012 the parties took out a joint home loan through [H Bank] which encumbered the [Suburb E] Property.
   4. The [Suburb E] Property was registered in the sole name of the Respondent throughout the relationship.
   5. The Applicant and her son lived with the Respondent in the [Suburb E] Property during periods of time throughout the relationship.
   6. There were periods of separation throughout the relationship.
   7. The Applicant lived in rental accommodation for which she paid for periods of time in 2008, 2009, 2011 and 2019.
   8. The parties married [in] 2013.
   9. In [early] 2018 the parties each received personal injury claim settlements that were contributed towards the parties' liabilities. The Applicant received $36,530.20 whilst the Respondent received $46,450 by way of compensation.
   10. In or around September 2018 the parties created the self-managed super fund '[Super Fund 1]'. The parties registered a company, [J Pty Ltd] to act as corporate trustee of the [Super Fund 1].
   11. In late 2018, the parties purchased the [City C] Property for the [Super Fund 1].
   12. It was necessary for the parties to obtain finance for the purchase of the [City C] Property. To obtain the loan, the parties were required to give a personal guarantee in relation to that loan.
   13. As part of the process of obtaining the loan for the purchase of the [City C] Property, the parties established a bare trust. The parties registered [K Pty Ltd] as the corporate trustee for that trust. Both parties were the shareholders and directors of [K Pty Ltd].
   14. The Respondent paid $32,000 to the Applicant in March 2019, and $3,000 to the Applicant in August 2019.
   15. The Applicant signed a Statutory Declaration with respect to the above payments on 23 February 2019.
   16. Post-separation, the Applicant retained [Motor Vehicle 1] (with the Respondent retaining responsibility for the loan relating to the vehicle).
   17. The Applicant also retained the bank accounts and shares in her sole name.
   18. In March 2019, the Respondent refinanced the mortgage on the [Suburb E] property into his sole name.
   19. On 28 September 2020, $97,730.36 was rolled out of the [Super Fund 1] and into a superannuation fund held in the Applicant's sole name.
   20. The parties' joint Application for Divorce was granted in [late] 2020. The Divorce Order was made [in late] 2020.
   21. Both parties continue to personally guarantee the mortgage loan encumbering the [City C] Property.
   22. At 11 August 2024, there was $181,238.00 owing on the [City C] property mortgage loan.
   23. The Applicant remains a shareholder and director of the company which is the registered proprietor of the [City C] property in its capacity as trustee of the [Super Fund 1].
6. Following the payment of monies to Ms Blom by Mr Eaton in March 2019 as referred to at paragraph 15 of the 'Agreed Facts' above, Ms Blom signed a Statutory Declaration on 23 February 2019 confirming the amounts paid. At hearing, there was no suggestion that any prior informal agreement between the parties was binding on the Court.
7. In early 2020, Ms Blom met Mr L and they formed a relationship.
8. In mid-2020, Ms Blom asked Mr Eaton for a divorce.
9. In late 2020, the parties were divorced.
10. In September 2021, Mr and Ms Blom purchased a property situate at M Street, Town N in the State of South Australia ('the Town N property') for the sum $470,000 and borrowed $427,000 by way of mortgage to complete the purchase.
11. In or about late 2023, Mr Eaton received an inheritance in the sum of $180,452.45 together with a motor vehicle valued at $10,000 following the death of his mother.
12. In December 2023, Ms Blom first sought legal advice from solicitors.
13. On 12 January 2024, the solicitors for Ms Blom contacted Mr Eaton by way of correspondence. The letter did not refer to the fact that Ms Blom was 'out of time' to bring an application for property settlement.
14. On 5 June 2024, Ms Blom commenced proceedings for property settlement and sought leave to proceed 'out of time'.
15. On 1 August 2024, Ms Blom received a communication from O Company in relation to a dishonoured repayment in her capacity as guarantor of the mortgage loan secured over the City C property.
16. In 2024, Ms Blom married Mr L.
17. On 22 November 2024, Mr and Ms Blom refinanced the Town N property's mortgage for the sum of $480,000 to consolidate a number of debts. From this sum, an amount of about $65,000 was drawn down and paid to Ms Blom's legal representatives for these proceedings.
18. At the commencement of the hearing, Ms Blom remained a director and shareholder of K Pty Ltd, and personally liable as guarantor for the mortgage encumbering the City C property.[9] At the date that Judgment was reserved, this was no longer the case with the parties having co-operated to remove Ms Blom from the company and to release her from any liability associated either with the mortgage or the guarantee.

1. Ms Blom stated in her oral evidence that Mr Eaton had offered her a settlement sum, being what he said he could afford to pay her at the time and told her that she would "not be getting any more." Ms Blom agreed that she had asked for the sum of $100,000 by way of a settlement sum, which Mr Eaton had declined to pay.
2. Ms Blom agreed that she had suggested Mr Eaton sell motor vehicles to pay her the settlement sum. She agreed that Mr Eaton had said that if the parties "lawyered up" then there would be no money left to divide. She said that Mr Eaton had told her in 2019 that there "wasn't much money around" and she had accepted what he told her. Ms Blom acknowledged that given their dispute over the settlement sum to be paid to her, there was a possibility that one or both would seek legal advice. She said that she had not sought legal advice at the time, either in person or by telephone because, of financial reasons. She agreed that she had made a conscious decision not to use the $30,000 paid to her by Mr Eaton because she knew the money would be used on legal fees and any dispute would cost a lot more than what she had.
3. When asked if prior to late November 2023 she had any intention of pursuing a claim against Mr Eaton for more money, Ms Blom said in her evidence that this assertion was "not exactly true." She stated that she was aware Mr Eaton had received an inheritance in late 2023 but could not recall when she first heard about it. She agreed that Mr Eaton's sister Ms Q had telephoned her and had told her during this conversation of her own inheritance. Ms Blom could not remember the date when her telephone call with Ms Q had taken place.
4. Ms Blom denied that her decision to pursue further funds by way of settlement from Mr Eaton came about when she heard that he had "more cash available" following her discussion with Ms Q.
5. Ms Blom agreed that she had read the parties' respective Costs Notices and that to date the parties had spent combined costs of about $140,000. She agreed with the proposition that legal costs would be "a lot more" if there was a further Trial. She acknowledged the proposition that Mr Eaton's earlier stated concerns about legal fees and the corresponding impact on their asset holdings was accurate.
6. Ms Blom contended that to fund this litigation she and her present husband had combined a number of different finance facilities into the one loan totalling $480,000. Ms Blom had then withdrawn the sum of $65,000 to place into her solicitors' trust account. The refinancing of the Town N property occurred in November 2024. By that time, Ms Blom was aware that she remained a guarantor for the City C property's loan but had withheld this information from her financier.
7. The evidence given by Ms Blom about the refinancing called into question the value of the Town N property which had previously been agreed by the parties at $470,000.
8. In 2020, she agreed that there had been communication between herself, Mr Eaton and an accountant for the Super Fund 1 wherein it was agreed that Ms Blom would be paid her member balance in the fund plus an additional $20,000. She said that she had not asked for more money by way of superannuation because there was "no point in arguing" and because in her opinion "it would make things worse."
9. Ms Blom agreed that in 2019 she was aware of her ability to seek legal advice upon a marriage breakdown and that she had an option to see a solicitor. There is no dispute based on Ms Blom's evidence that she received a copy of the Divorce Order. She said that she didn't read it acknowledging that there was "nothing stopping her from reading it." She described being "happy" to be divorced as she was moving to a new relationship. Ms Blom agreed that the parties had co-operated and been polite with one another to get "the divorce done" and had texted each other to facilitate the necessary steps required.
10. Ms Blom agreed that post-separation, the parties had maintained a civil relationship, meeting for dinner with Mr F and attempting to share the care of their pet dog. Ms Blom had voluntarily disclosed to Mr Eaton that she could still access a particular bank account post-separation which was operated by Mr Eaton. Mr Eaton had then suggested that she withdraw $100 from the same account and use it to purchase a printer for herself.
11. Ms Blom agreed that her son Mr F had considered Mr Eaton to be "like a father" to him because his own father lived interstate and their relationship was therefore limited. Mr F had also lived with Mr Eaton following separation in 2019 and had saved money by doing so. Ms Blom made appropriate concessions in her evidence as to Mr Eaton's strong work ethic and the positive impact that this has had on Mr F as an adult. The relationship between Mr F and Mr Eaton was described by her as "cordial" until these proceedings but with Mr F described by his mother as being "respectful of us both."
12. Ms Blom agreed that she had described Mr Eaton as being "drunk and abusive" on separate occasions in 2005, 2007 and 2014 in her primary affidavit. She agreed that during their relationship, each of the parties had consumed alcohol and sometimes to excess. Ms Blom said that she had clear recollections of the incidents described in her primary affidavit of Mr Eaton being drunk and abusive despite the passage of time and her also drinking on those occasions. Ms Blom denied when challenged that she "gave as good as she got" nor that she "tried to push his [Mr Eaton's] buttons." She was adamant that Mr Eaton had "pushed" her out of a taxi after telling the driver to stop and ordering her out.[10] The second taxi incident involved a further argument after the parties had been drinking and Mr Eaton had wanted to take taxi to Town R to continue drinking and Ms Blom wanted to go home.[11] Ms Blom said that Mr Eaton had thrown his wallet at her and left in the taxi without her.
13. Ms Blom did not recall signing the informal property agreement on 23 February 2019 but agreed that she had.[12] She did not recall signing in a front of the Justice of the Peace, Ms S, or taking the document away to be signed and witnessed. Ms Blom agreed that paragraphs 140 and 141 of her primary affidavit suggested that Mr Eaton had "made" her sign the said agreement on the day. Regardless, she said that she signed it because she felt like she had no choice and that if she didn't sign it, she would not be getting any money at all.
14. Ms Blom first saw a solicitor in December 2023. Ms Blom agreed that a letter approved by her was sent to Mr Eaton on 12 January 2024 seeking a "just and equitable" property settlement. Ms Blom acknowledged that at the time the letter was sent, she knew that she was outside the 12-month time limit and agreed that the letter made no reference to her being "out of time." She acknowledged also that the letter did not refer to any alleged violence or physical abuse against herself or Mr F. She conceded that she had raised the issue of family violence after Mr Eaton had rejected her request for further money. She said it was "more recently" that she had formed the opinion that her relationship with Mr Eaton was not a "normal functioning relationship."
15. Ms Blom was challenged as to whether she maintained that her delay was due to the harmful treatment that she had received from Mr Eaton. In her Trial affidavit, Ms Blom had deposed that:

I say that [Mr Eaton] took advantage of the fact that I lacked the emotional and financial strength to feel able to pursue any sort of action against him. He took all of my confidence and independence away.[13]

1. Contrary to the above pleading, Ms Blom stated that the reason for the delay was because she did not have the financial capacity to do so, despite knowing that she had 12 months in which to bring the application following their divorce.

1. At cohabitation in 2012, Mr Eaton asserted that he held net assets and superannuation with an estimated value of $248,300 and that Ms Blom owned net assets including superannuation of an estimated $65,000.[14]
2. It is Mr Eaton's case that during the parties' marriage, he was the primary income earner. Mr Eaton was unable to concede Ms Blom's income during the period of their marriage as the parties maintained separate finances with Ms Blom's earnings paid into a bank account in her sole name.
3. Mr Eaton stated that he paid most of the mortgage repayments and all of the rates and utilities for the Suburb E property during the marriage. He conceded that Ms Blom made what he describes as "nominal payments" directly to the joint mortgage account and a joint personal loan. Mr Eaton agreed that Ms Blom paid the sum of $36,530 received by way of compensation for a motor vehicle accident toward the joint mortgage and to credit card liabilities. Further, Mr Eaton conceded that Ms Blom made payments into their joint savings account from which he paid rates and utilities for the Suburb E property and daily expenses.[15]
4. Mr Eaton agreed that he had offered to pay Ms Blom the sum of $35,000 because this was the maximum amount that he could borrow, and that Ms Blom had agreed to this figure.[16] In addition, Mr Eaton continued to pay the loan for Ms Blom's Motor Vehicle 1 which had a balance of $17,000 until the loan was discharged in full by August 2021.[17]
5. Under cross-examination, Mr Eaton agreed that the parties had not discussed a division of their superannuation in early 2019. Rather, Mr Eaton recalled that in early to mid-2020, Ms Blom had asked him for a superannuation split and they had co-operated to ensure this occurred.
6. By June 2020, the sum of $97,730.36 had been rolled out of the Super Fund 1 being Ms Blom's member balance of $77,730 and an additional top up of $20,000.[18]
7. Mr Eaton agreed that after final separation he had not discussed the guarantee for the City C property's loan with Ms Blom describing this as a "complete oversight."
8. Mr Eaton maintained that following separation the parties maintained a cordial relationship with each other and had co-operated in the division of their relevant property.

1. Although this is an interlocutory application, I determined that the Court would be assisted by the parties giving oral evidence and having the opportunity to cross-examine the other regarding any factual matters in dispute and the allegations made by Ms Blom which were said to underpin her application.
2. All facts in dispute must be proved on the balance of probabilities.[19]
3. The parties were both cross-examined and made appropriate concessions. I consider that each of the parties gave their evidence truthfully and to the best of their ability. At times, Ms Blom gave evidence contrary to her interests.
4. Given the serious allegations made by Ms Blom regarding family violence which were said to underpin her failure to file for property settlement in time, it is a curiosity that Mr Eaton was not cross-examined on the issue of family violence at all. Nor did Ms Blom produce any evidence from any health practitioner or counsellor, or any evidence addressing her inability to act consequent to being a victim of family violence perpetrated by Mr Eaton.

1. Part VIII of the Family Law Act 1975 (Cth) ('the Act') deals with financial matters relating to parties who are or have been married to one another. Specifically, section 79(1) of the Act authorises the Court to alter the property interests of parties to a marriage.
2. Time limits are imposed in respect of such applications for property settlement.
3. Section 44(3) of the Act states as follows:

(3) Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983:

(a) a divorce order has taken effect; or

(b) a decree of nullity of marriage has been made;

proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after:

(c) in a case referred to in paragraph (a)--the date on which the divorce order took effect; or

(d) in a case referred to in paragraph (b)--the date of the making of the decree.

The court may grant such leave at any time, even if the proceedings have already been instituted.

(Emphasis in original)

1. Consideration of an application under section 44(3) of the Act requires the Court to consider whether:

(a) Hardship is demonstrated; and

(b) The Court's discretion should be exercised to allow such an application to proceed.

1. The Court has a discretion provided in section 44(4) of the Act to grant leave if it is satisfied:

...that hardship would be caused to a party to the relevant marriage or a child if leave were not granted.

1. The parties in this case were divorced in late 2020.[20] Attached to the second page of the sealed Divorce Order of late 2020 is a Note which reads:
   1. If a party to the marriage proposes to make an application to a court exercising jurisdiction under the Family Law Act 1975 as to property or as to the maintenance of that party, such application must be made within 12 months from the date upon which this divorce order takes effect. After that time such an application cannot be made without first obtaining the leave of the court to do so.
2. There is no dispute in this case that Ms Blom requires an extension of time to proceed with her application for property settlement pursuant to section 44(3) of the Act. The prescribed time limit for Ms Blom to commence proceedings expired in late 2021. Ms Blom is, therefore, 'out of time' by a period of two years and seven months.
3. At this stage of the proceedings, the Court's enquiry is a limited one. The Court is not to consider the merits of Ms Blom's claim, but rather if there is one.[21]
4. Legitimate reasons for not bringing an application within the requisite time is to be compared against those cases involving "wilful blindness or recalcitrance."[22] Equally a desire to bring an application out of time is to be balanced against the need for parties to 'get on with life' free from the prospect of future litigation.
5. It has been determined that a limitation period should not be seen as some an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. Rather, a limitation period:

... represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. ... A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case...[23]

1. Ms Blom must demonstrate to the Court that if leave is not granted, she will be deprived of a reasonable chance of success in the proceedings and that will constitute hardship. Given the interlocutory nature of this application Ms Blom must demonstrate a prima facie claim worth pursuing and leave will not be granted if to do so would not, in the final result, alleviate the hardship.[24]
2. In assessing whether Ms Blom has established a prima facie case, I must consider if the evidence remained the same at the time of final hearing, there is a probability that she would succeed in securing a property settlement in her favour.[25] The likely costs involved in pursuing an application are relevant in this assessment.[26]
3. The power to extend should be exercised liberally in order to avoid hardship but not in a manner which would render nugatory the requirement that property proceedings should be instituted within a year from the date of the decree nisi. The establishment of hardship is a prerequisite to the exercise of the discretion in Ms Blom's favour. If there is no real likelihood of success of the application, then I cannot be satisfied that hardship would result if leave were not granted.
4. Hardship in the context of this application has been described as meaning "substantial detriment".[27] The loss of a right to commence proceedings does not of itself constitute hardship.[28] The consequences that follow from the loss of that right may establish hardship which is to be determined on the facts of each case.[29]
5. The case authorities confirm that the Court must carefully consider any application that seeks to step outside the limitation periods imposed by legislation. This is because it is in the interests of society that litigation between parties should commence within fixed parameters so that persons can move on with their lives and arrange their affairs on the basis that claims can no longer be made against them.[30]
6. The Act provides a discretion to extend time to alleviate any potential hardship. Relevant to the Court's consideration include the length of the delay; the reasons for the delay; any prejudice occasioned to the respondent by reason of the delay; the strengths, on the merits, of the applicant's case; and the degree of the hardship, which would be suffered unless leave was granted.[31]
7. If hardship is established, the Court must then consider the next step namely, whether or not leave should be granted to the applicant to proceed. This requires the Court to exercise its discretion in a manner that, ultimately, is consistent with justice being done to both parties. The potential injustice to Ms Blom being unable to pursue an application must be compared to the prejudice to Mr Eaton in granting such leave.[32]
8. In Whitford & Whitford [1979] FamCA 3; (1979) FLC 90-612, the Full Court determined that the manner in which this discretion is to be exercised must depend on the facts of the particular case. It has been described as an "idiosyncratic decision."[33]
9. The relevant principles for an application to proceed out of time were condensed into a useful dot point summary by His Honour Judge Brown in the decision of Hines & Easton [2023] FedCFamC2F 311 as follows:
   1. From these various authorities, in my view, the following principles may be distilled in respect of the exercise of the discretion to extend time:
      • limitation periods are significant as they are created by the legislature to safeguard legitimate public interests. As such, they should not be arbitrarily over-ruled;
      • however, the discretion to extend time is to be liberally exercised in order to avoid hardship;
      • hardship is more than the loss of an entitlement to bring proceedings. Rather the court must look at what are the consequences, for the applicant concerned, of not being able to institute proceedings;
      • the applicant must establish a reasonable prima facie case for the relief sought, if the proceedings had been brought in time. What this means is whether, on the material available, the applicant has a reasonable claim;
      • this process of assessment must involve the likely strengths and merits of the claim sought to be advanced, including prospective costs;
      • there must be a real possibility of success. Hardship will not arise if leave is not granted to pursue a claim which is assessed as being uncommercial;
      • in assessing what is a reasonable prima facie case, the court should accept the evidence of the applicant concerned, at its highest, unless it is patently absurd or contradictory;
      • the applicant must establish that he or she would suffer hardship if an extension is not granted;
      • the discretion to extend time must be exercised judicially;
      • as such, a reasonable explanation for the delay must be provided;
      • also relevant, in this context, are the following:
        • the length of the delay;
        • the prejudice to the respondent if leave is granted;
        • any other relevant consideration;
        • However, an explanation for delay is but one factor amongst several and the overall interests of justice may overcome what is to be regarded as an inadequate explanation.[34]

1. Even where hardship is established the Court retains a discretion whether or not to grant leave.[35] The non-exhaustive list of matters relevant to the exercise of the discretion where hardship is established include the following:

(a) The length of the delay;

(b) The reasons for the delay for the whole period;[36]

(c) The strength of the applicant's case on the merits;[37]

(d) The degree of the hardship which would be suffered unless leave were granted;

(e) Any relevant conduct of the applicant;[38]

(f) The absence of any significant property at the time when the proceedings should have been instituted, does not (as a matter of law) preclude the grant of leave under s 44(3) to institute proceedings at a subsequent time when some property has become available for distribution between the parties. However, in such circumstances the discretion to grant leave should be exercised "with great care".[39]

(g) The prejudice occasioned to the respondent by reason of the delay;

(h) The law presumes prejudice to flow to a person sought to be joined in litigation after the effluxion of the relevant time limits;[40]

(i) Prejudice to the respondent may mean "that a party is faced with an action which he or she had no reason to expect or had been led to believe would not be brought."[41]

(j) While the entitlement sought to be pursued by the applicant need not be a substantial one,[42] if the costs associated with the claim exceed the likely award, "ordinarily hardship would not result if leave to institute proceedings were not granted";[43] and

(k) For the applicant to remain "tied into a financial dependence" upon the respondent may amount to hardship.[44]

1. In considering Ms Blom's application, the applicable authorities require the Court to undertake some form of prospective assessment of what a party will forego, if leave is not granted.[45] This requires the Court to make a summary assessment of the claim by reference to the legislative provisions in the Act.
2. Section 79(1) of the Act provides that the Court is authorised to make such order as it considers appropriate in order to alter the interests of the parties to a marriage in relevant property.
3. Section 79(2) of the Act directs the Court not to make an order unless it is satisfied that it is just and equitable to do so in all of the circumstances.
4. Section 79(4) of the Act sets out the 'nuts and bolts' of how a Court is to make an order altering interests in property. The subparagraphs in (a) to (g) contain specific topics that the Court must consider if relevant.
5. Until recently, the preferred approach in resolving property settlement applications followed a four-step process identified in the cases of Hickey & Attorney-General (Intervenor) [2003] FamCA 395; (2003) FLC 93-143 at 78,386 at [39] and Bevan & Bevan [2013] FamCAFC 116 at [60].
6. The applicability of the four-step process was considered by the High Court in the decision of Stanford & Stanford [2012] HCA 52 where the majority stated that:

The operation of s 79

1. It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order". Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub‑sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

2. The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. And while the power given by s 79 is not "to be exercised in accordance with fixed rules", nevertheless, three fundamental propositions must not be obscured.

(Footnotes omitted)

1. Considerations of justice and equity, therefore, permeate all property settlement applications. What is just and equitable will depend on the facts and circumstances of each individual case.
2. In this case, Mr Eaton asserts that it would not be just and equitable on the facts to permit Ms Blom to proceed with her application for property settlement out of time. Ms Blom argues the exact opposite.

1. The Court must make a summary assessment of the prospective claim of Ms Blom in order to determine whether the onus has been discharged. In other words, whether Ms Blom demonstrate a prima facie case that would alleviate hardship if leave were granted.
2. In considering whether or not Ms Blom has established a prima facie case, her evidence is to be taken at its highest.[46]
3. In looking at the evidence of the parties, I am able to record the following:

(1) At the commencement of cohabitation, it is agreed that Mr Eaton had interests in the at Suburb E property and the property situate at T Street, Suburb G in the State of South Australia ('the Suburb G property'). Whilst the parties each assert interests in superannuation and motor vehicles, there is no agreement as to value or evidence of value;

(2) It is agreed that both parties worked during the relationship. Mr Eaton deposes that his taxable income increased from about $125,000 to $170,000 per annum from 2012 to 2019. There is no evidence of the actual income earnt by Ms Blom during the relationship. Ms Blom agreed in her evidence that Mr Eaton worked six days per week and had a strong work ethic;

(3) Between 2005 and 2012, the parties did not cohabitate together permanently. It is agreed that in the years 2008, 2009, 2011 and 2019, Ms Blom lived in rental accommodation for periods of time;

(4) In 2018, each party received personal injury claim settlements, being $36,530 for Ms Blom and $46,450 for Mr Eaton, which were paid towards the parties' liabilities;

(5) During the relationship, the parties jointly borrowed money secured against the Suburb E property which remained in Mr Eaton's sole name. Ms Blom made financial contributions to the Suburb E property's mortgage and household utilities but at a much reduced level compared to Mr Eaton;

(6) Mr Eaton sold his Motor Vehicle 2 for $70,000 to fund the completion of the Suburb E rebuild;

(7) In 2002, Mr Eaton sold the Suburb G property and paid the net proceeds of about $100,000 to the rebuild of the Suburb E property;

(8) Mr F, the son of Ms Blom, lived with the parties. There was no evidence regarding what child support Ms Blom received for Mr F, if any;

(9) Both parties assert non-financial contributions were made by each of them. There is no agreement as to how those contributions are to be assessed;

(10) In or about 2011, Ms Blom received a payout of $10,000 from her employer, U Company, which she utilised to pay rent and living expenses;

(11) Neither party promotes any concerns regarding their respective health that could impact on their capacity for employment; and

(12) There are no children from their relationship.

1. As at the date of separation, Ms Blom deposed that the parties had net non-superannuation assets of $154,407 with Mr Eaton having $98,995 and Ms Blom having $55,412. As to superannuation in 2020, at the time of the rollover there was a total balance of $399,057.42 with Mr Eaton retaining a member balance of $327,174.14 and Ms Blom retaining a member balance of $71,883.28.[47]
2. As at the date of separation, Mr Eaton asserts the parties had total net assets of $158,288 and total superannuation of $354,496 and a "top up" of $20,000.[48]
3. As at the date of hearing, Ms Blom asserted that the parties had total net non-superannuation assets of $509,195 and total combined superannuation of $787,286.[49] Mr Eaton asserted the parties had total combined net assets of about $489,672 and total superannuation of $524,302.[50]
4. In 2020, Ms Blom met and married her current husband, Mr L, and they purchased a house together. There is scant evidence before the Court regarding Mr L's financial circumstances. Curiously, Ms Blom's evidence was that she and Mr L had refinanced in late 2024 and now had a mortgage which exceeded the agreed value for the Town N property at $470,000. This anomaly was never explained to the Court but suggests that the value of the Town N property is higher than what was previously agreed.
5. Ms Blom works as a casual sales assistant and earns approximately $500 per week after tax. She is in good health. Mr Eaton as a tradesperson and earns approximately $2,688 per week after tax. He is in good health.
6. There is no dispute that Mr Eaton earns significantly more income than Ms Blom.
7. Mr Eaton received an inheritance from his late mother in late 2023 in the sum of $180,452 plus a motor vehicle. Funds from the inheritance were used to pay down liabilities. There has been a corresponding rise in the value of the Suburb E property which Mr Eaton has retained and improved since the parties' divorce. It must be observed that the acquisition of assets post-separation does not necessarily result in them being excluded when considering a property order.[51]
8. Doing the best it can on the limited evidence available, the parties broadly agree their initial contributions but do not agree values. The parties agree that they each made direct and indirect financial and non-financial contributions during the periods of their cohabitations but do not agree on how these contributions are to be assessed. It is not in dispute that the parties had several periods of separation during their relationship where they lived in separate residences and maintained separate finances whilst still seeing one another. A stable period of unbroken cohabitation did not occur until 2012. Final separation is agreed to have occurred in 2019.
9. In the context of this case, I consider it significant that Mr Eaton concedes that Ms Blom, if her evidence is taken at its highest, might have secured a greater adjustment of the assets available at the time of separation. If Ms Blom had received about 50 per cent of the non-superannuation asset pool, she may have received a cash sum of about $70,000 to $80,000. Mr Eaton submits that is unlikely that Ms Blom would have achieved much greater than that on the available evidence. I agree with this submission.
10. On the facts of this case, I am therefore satisfied that Ms Blom has a sufficient likelihood of success in establishing hardship if her application for leave was declined on the available evidence.

1. Having determined the question of hardship, the Court must now consider the second limb namely, whether in the exercise of its discretion the Court should grant, or refuse leave to institute proceedings. The discretion must be exercised carefully and judiciously.
2. In this case the length of the delay, the intervening events and the reasons for the delay are important matters to be considered because the parties had reached an amicable agreement as to the division of their assets.
3. In exercising its discretion, the Court is to consider several important criteria. In no order of priority, the following issues impact on my ultimate decision not to exercise my discretion to grant leave to Ms Blom.
4. First, the period of delay in bringing the application is not insignificant. In that time, both parties had moved on with their lives and made financial decisions reflective of their mutual separation. Ms Blom had remarried and purchased a home with her new husband. The parties had divided their assets and to all intents and purposes, had gone their separate ways.
5. Far from the evidence supporting Ms Blom being overborne by Mr Eaton in their settlement negotiations, the opposite is true. The parties co-operated with each other in the division of their assets and maintained a cordial relationship with one another. Mr Eaton assisted Ms Blom in her earnest desire to marry Mr L. Ms Blom did not read the information provided at the date of her divorce because she was keen to move on and cement her relationship with Mr L. As far as she was concerned, the relationship with Mr Eaton was "done and dusted."
6. Ms Blom made a conscious choice not to get legal advice because she did not want to use any of her settlement sum on solicitors.
7. The clear evidence supports a finding that Ms Blom sought legal advice consequent upon learning that Mr Eaton's mother had died and that an inheritance had been received by Mr Eaton's sister, Ms Q.
8. Further to this, I do not accept that Ms Blom was so frightened of Mr Eaton that she was paralysed from seeking legal advice until married to Mr L. The evidence did not even come close to supporting the serious contentions made by Ms Blom in her evidence and as asserted in her Outline of Case Document. The allegations made by Ms Blom as set out in paragraph 14(h) herein were the basis upon which cross-examination was directed to occur. Absent the cross-examination and on the papers, the Court may have been favourably inclined to Ms Blom's petition given the very serious nature of her allegations about Mr Eaton and his behaviour.
9. Whilst costs incurred during litigation, if leave was granted, does not result in the establishment of hardship, scrutiny of the parties Costs Notices adds more concern to the Court. This is because I assess the likely costs to be incurred as disproportionate to the amount in dispute. Ms Blom's actual costs (paid and unpaid) up to the date of hearing are an estimated $66,500 and with estimated future costs up to and including each future event being an estimated $140,000.[52] Mr Eaton has incurred costs (paid and owing) up to the date of hearing is $43,252.77 and with solicitor and counsel costs said to range between $25,000 to $35,000. Final hearing costs are estimated to be between $55,000 and $60,000 plus disbursements.[53] Therefore, the combined costs of the parties could reach $280,000.
10. On the facts of this case, I consider that the future anticipated legal costs are wholly disproportionate to the amount, if any at all, that would be granted to Ms Blom given the factors of contribution that are in play, and particularly Mr Eaton's post-separation inheritance.
11. I accept that Ms Blom will be disappointed by my decision. However, the combined legal costs of the parties given the relatively modest size of the asset pool weighs heavily upon me, noting that Ms Blom has already refinanced the mortgage over her home to get to this point. I do not assess Ms Blom as being a wealthy person. There is a very real risk that her future legal costs may exceed any ultimate payment she might receive, if that was to occur.
12. For all those reasons, I, therefore, propose to exercise my discretion and to dismiss Ms Blom's application.

1. It remains open for a party seeking costs to do so within 28 days of these orders.
2. In contemplating any costs application, it must be remembered that at the commencement of the hearing, the parties remained financially intertwined and with Ms Blom a guarantor of a mortgage secured over an asset retained by Mr Eaton. By the conclusion of the hearing, and to their credit, the parties had co-operated in having Ms Blom removed as a guarantor. The parties' financial enmeshment was finally severed.
3. I consider it likely that Ms Blom had forgotten about the existence of the guarantee until she received notice in August 2024 that Mr Eaton had defaulted on a mortgage instalment.
4. I make it clear that had the parties' financial enmeshment not been severed, the outcome of this application may have looked very different. This is precisely the situation addressed by the Full Court in Aldred & Aldred (No 2) (1985) FLC 91-602 where the parties remaining "tied into a financial dependence" was considered a factor in determining hardship, least a party was denied the opportunity to alter the interests of the parties in those assets.
5. For all of the above reasons, the Court makes the orders as set out at the commencement of this Judgment.

I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson.

[1] Ms Blom filed a Notice of Change of Name on 8 November 2024 reflecting her new surname of "[Blom]" following her marriage to Mr L in 2024.

[2] The Outline of Case Document (Interim Hearing) filed by Ms Blom on 28 November 2024 did not refer to her Amended Initiating Application filed 26 November 2024.

[3] The orders for disclosure and mediation were not pressed at Trial and are dependent on the outcome of Ms Blom's primary application.

[4] The order seeking that paragraphs 2 to 11 of Ms Blom's application be stayed pending determination of the leave issue was not pressed and was not the subject of submission by Mr Eaton's counsel.

[5] See the Outline of Case Document (Interim Hearing) of Ms Blom filed 28 November 2024 at paragraph 71.

[6] See the Outline of Case Document (Interim Hearing) of Mr Eaton filed 28 November 2024 at paragraph 3.

[7] Kennon & Kennon [1977] FamCA 27.

[8] See the Outline of Case Document (Interim Hearing) of Mr Eaton filed 28 November 2024 at paragraph 43.

[9] Paragraph 4 of Ms Blom's (Amended) Initiating Application filed 26 November 2024 sought to be released from any association with the company, K Pty Ltd, and from the guarantee in favour of P Company.

[10] See the Affidavit of Ms Blom (as she then was on the Court file) filed 17 October 2024 at paragraph 31.

[11] See the Affidavit of Ms Blom (as she then was on the Court file) filed 17 October 2024 at paragraph 33.

[12] See the Affidavit of Mr Eaton filed 19 November 2024 at "Annexure A" being a statutory declaration signed 23 February 2019.

[13] See the Affidavit of Ms Blom (as she then was on the Court file) filed 17 October 2024 at paragraph 191.

[14] See the Affidavit of Mr Eaton filed 19 November 2024 at paragraphs 23 to 25. No evidence was provided confirming these amounts.

[15] See the Affidavit of Mr Eaton filed 19 November 2024 at paragraph 34.

[16] See the Affidavit of Mr Eaton filed 19 November 2024 paragraph 57.1.

[17] See the Affidavit of Mr Eaton filed 19 November 2024 at paragraph 57.3.

[18] See the Affidavit of Mr Eaton filed 19 November 2024 at paragraph 57.7.

[19] Evidence Act 1995 (Cth) s 140; Briginshaw & Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[21] Jacenko & Jacenko [1986] FamCA 25; (1986) FLC 91-776.

[22] Montano & Kinross [2014] FamCAFC 231, [14].

[23] Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541, 547.

[24] Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; Edmunds & Edmunds [2018] FamCAFC 121.

[25] Edmunds & Edmunds [2018] FamCAFC 121.

[26] Whitford & Whitford [1979] FamCA 3; (1979) FLC 90-612; Gadzen & Simkin [2018] FamCAFC 218.

[27] Hall & Hall [1979] FamCA 50.

[28] Sharp & Sharp [2011] 50 FamCAFC 150.

[29] Sharp & Sharp [2011] 50 FamCAFC 150, [17].

[30] Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541.

[31] Slocomb & Hedgewood [2015] FamCAFC 219; (2015) FLC 93-678; Bellfield & Bellfield [2020] FCCA 2871, [132].

[32] Montano & Kinross [2014] FamCAFC 231.

[33] Hines & Easton [2023] FedCFamC2F 311, [85].

[34] Hines & Easton [2023] FedCFamC2F 311, [102].

[35] Whitford & Whitford [1979] FamCA 3; (1979) FLC 90-612, 78,146; Sharp & Sharp [2011] 50 FamCAFC 150, [22].

[36] Althaus & Althaus [1979] FamCA 47, 77,267.

[37] Sharp & Sharp [2011] 50 FamCAFC 150, [36], 577, [70], [73].

[38] Sharp & Sharp [2011] 50 FamCAFC 150, [38].

[39] Richardson & Richardson [2008] FamCAFC 107, [23].

[40] Sharp & Sharp [2011] 50 FamCAFC 150, 580, [97].

[41] Frost & Nicholson [1981] FamCA 45; (1981) FLC 91-051, 76,424.

[42] Frost & Nicholson [1981] FamCA 45; (1981) FLC 91-051, 78,45.

[43] Whitford & Whitford [1979] FamCA 3; (1979) FLC 90-612, 78,145; Sharp & Sharp [2011] 50 FamCAFC 150, [69], and [72].

[44] Aldred & Aldred (No 2) (1985) FLC 91-602, 79, 870.

[45] Edmunds & Edmunds [2018] FamCAFC 121; Althaus & Althaus [1979] FamCA 47.

[46] Skelton & Lindop [2022] FedCFamC1A 47.

[47] See pages 314 to 415 of the Tender Book of Ms Blom relied upon pursuant to Orders of 5 December 2024 at Order 1.

[48] See the Affidavit of Mr Eaton filed 19 November 2024 at paragraph 55.

[49] See the Outline of Case Document (Interim Hearing) of Ms Blom filed 28 November 2024 at pages 13 and 14.

[50] See the Affidavit of Mr Eaton filed 19 November 2024 at paragraph 64.

[51] Holland & Holland [2017] FamCAFC 166.

[52] See the Costs Notice of Ms Blom filed 29 November 2024.

[53] See the Costs Notice of Mr Eaton filed 28 November 2024.