Pearce & Pearce [2025] FedCFamC2F 571 (7 May 2025)

(a) a copy of the parties' respective applications, affidavits and Financial Statements;

(b) a full list of assets (including any superannuation) and liabilities including values;

(c) details of alleged financial contributions;

(d) relevant future needs factors pursuant to section 75(2) or 90SF(3) of the Family Law Act 1975;

(e) the proposal for property settlement; and

(f) copies of any current intervention or restraining orders.

1. That unless otherwise exempted from payment, the parties must each pay an amount equivalent to half of the Conciliation Conference fee in respect of the above mediation in accordance with the Family Law (Fees) Regulation 2012 prior to the property mediation.
2. That unless agreed in writing within 7 days of the date of these Orders, for the purposes of the Mediation only, then the parties jointly obtain valuations of any asset the value of which is in dispute such to be filed on Affidavit no later than 2 business days prior to the Mediation and that the parties to be equally responsible for the costs of the preparation and provision of the valuation.
3. That leave is granted to the parties to file with the Chambers of Judge Turnbull executed Consent Orders/Terms of Settlement prior to the adjourned date and if appropriate orders may be made in Chambers and the above adjourned date may be administratively vacated.
4. The matter be listed in the Federal Circuit and Family Court of Australia before Judicial Registrar Gelston at Hobart for further case management on 22 July 2025 at 10.00 a.m. with leave granted to the parties to appear by Microsoft Teams.

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

1. Mr Pearce ('the Applicant'), seeks leave to file an application for a property order out of time, pursuant to section 44(3) of the Family Law Act 1975 (Cth) ('the Act'). The Respondent is Ms Pearce ('the Respondent').

1. The parties commenced cohabitation in 2006, were married in 2008 and separated on 14 June 2017. They divorced in mid-2019.
2. There is one child of the relationship - X - who is 17 years of age. X has lived primarily with the Applicant since separation and the Respondent has had no involvement in his life since January 2023.
3. When the parties commenced cohabitation, they were living in New South Wales ('NSW'). In 2016 they moved to the United Kingdom ('UK'). The parties separated in 2017, and X and the Applicant returned to NSW in 2018. The Respondent followed and resided with the Applicant until living independently in 2019. The Applicant and X moved to Tasmania in 2019.
4. In 2022, a property the parties owned in Suburb D, Western Australia ('the Suburb D property'), was sold and, by agreement, the Applicant retained the proceeds of sale - $142,000. The Applicant did, however, provide the Respondent with some of the monies on the understanding that she would pay him back. The Applicant claimed that he provided her with $38,859.81, of which, $11,910.00 was repaid, with the balance of $142,000, he claimed, being reasonably spent.
5. Post-separation the Respondent received approximately $1,150,000 AUD by way of inheritances from her late father and uncle's estates. She will receive a further $465,000 GBP from those estates over the next few years.[1] From those monies, the Respondent purchased a property with her partner, but conceded that her partner holds his interest upon trust for her.[2]
6. On 1 July 2024, the Applicant filed an Initiating Application seeking, in addition to leave to file out of time, a payment of $500,000 from the Respondent. He amended his application on 7 August 2024, but did not change the quantum of his claim. During the hearing, Mr Maguire, Counsel for the Applicant, submitted that his claim was for 20 to 30 percent[3] of a non-superannuation asset pool, valued - for the purpose of the hearing - at $600,537.[4] This, he submitted, would result in him receiving a cash payment from the Respondent of between $100,000 and $200,000.
7. I note that there is also superannuation valued at $459,681, of which the Applicant holds $378,477. The Applicant contended that each party should retain their superannuation holdings.
8. Submissions relating to the application for leave commenced on 3 March 2025 but could not conclude that day as further information was required. Submissions finalised on 11 April 2025.

1. Each party relied upon the documents set out in their case outlines, all of which I have read and considered.

1. Section 44(3) of the Act[5] empowers the Court to grant leave to a party to commence or to continue proceedings in circumstances where they have failed to seek orders for property adjustment pursuant to section 79 of the Act, and/or maintenance, within 12 months of a divorce order taking effect.
2. Section 44(4) goes on to state that leave shall not be granted unless the Court is satisfied that that 'hardship would be caused to a party to the relevant marriage or a child if leave were not granted'[6] (emphasis added).
3. In Hardwick & Hardwick (No 2) [2022] FedCFamC1A 216, the Full Court set out the principles to be applied when a party seeks leave to proceed out of time:

The decision as to whether leave should be granted to commence or continue proceedings pursuant to Pt VIII of the Act essentially involves balancing two competing principles of public policy. The first is that the Commonwealth Parliament has stated that, ordinarily, such proceedings should be commenced within 12 months of the date of the divorce. The second is that relief from the operation of s 44 of the Act should nonetheless be granted out of time in order to avoid hardship to a spouse or a child of the relationship.

In respect to that second consideration, s 44(4)(a) of the Act provides that an extension of time should not be granted under s 44(3) of the Act unless the Court is satisfied "that hardship would be caused to a party to the relevant marriage... if leave were not granted".

In Whitford & Whitford [1979] FamCA 3; (1979) FLC 90-612 at 78,145, the Full Court said:

In ordinary parlance, hardship means something more burdensome than "any appreciable detriment". We consider that in subsec. 44(4) the word should have its usual, though not necessarily its most stringent, connotations. It is impossible to lay down in advance what particular facts may or may not amount to hardship in the relevant sense.

We observe that in Family Law (2022, 7th ed) at [36.120], Riethmuller and Smith note that what constitutes appreciable detriment necessarily depends upon the circumstances of each case, stating that:

In many cases the substantial detriment is the inability of a spouse to pursue a claim for maintenance or an alteration or property interests where the resulting loss is significant in the light of his or her financial circumstances.

The applicant for relief's prospects of success in the proceedings, if leave is granted, is relevant to both the question of hardship and the second task undertaken by the Court, which is to consider matters going to the exercise of discretion generally. This is because "[if] the probable result of the hearing on the merits is that hardship is not likely to be alleviated, then the Court cannot be satisfied that the applicant would suffer hardship if leave were not granted": V and S [2006] FCWA 2 ("V and S"), per Thackray J at [6].

As recently noted by Austin J in Skelton and Lindop [2022] FedCFamC1A 47; (2022) 64 Fam LR 617 ("Skelton and Lindop") at [16]-[21], there is differing authority as to the test to be applied in determining the prospects of success. Those tests range from the need to establish "prima facie claim" to the need to establish "a real probability of success." We respectfully acknowledge and adopt the reasoning of Austin J that the appropriate test to apply is whether the applicant for relief had "sufficient likelihood of success" to prove hardship.

In the event of the trial judge finding that the applicant for relief would suffer hardship if an extension of time was not granted, it is then necessary for the trial judge to consider those matters going to the exercise of discretion. In V and S, Thackray J noted at [7] that, in addition to prospects of success, other potentially relevant considerations to the exercise of discretion may include the following:

• The extent of the delay and the reasons (or absence of reasons) for the delay: Althaus & Althaus (1982) FLC 91-233;

• The extent of the hardship the applicant would experience if leave were not granted: Carlon & Carlon [1982] FamCA 60; (1982) FLC 91-272; and

• The extent of the prejudice that would be caused to the respondent if leave were granted.

In Frost & Nicholson [1981] FamCA 45; (1981) FLC 91-051 ("Frost & Nicholson") at 76,425, Nygh J said that prejudice, in this context, "means 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". However, in Atwill & Atwill [1981] FamCA 72; (1981) FLC 91-107 ("Atwill & Atwill") at 76,794, Nygh J stated that the relevant prejudice would need to be "distinctly observable hardship, such as financial commitments made on the basis that no liability existed**". It appears to us that the extent of any prejudice is simply one of the relevant factors to consider and that Nygh J's comments in these two cases should be read as descriptive of circumstances where prejudice is likely to be a weighty factor, not a test for the relevance of evidence of prejudice**. Additionally, in Atwill & Atwill, his Honour also pointed out that the fact that the respondent will suffer prejudice does not necessarily mean that the discretion will be exercised in their favour.

APPROACH

Applications seeking an interlocutory order under s 44(3) of the Act are generally dealt with on the basis that the applicant's evidence is presumed to be correct "unless it is inherently unbelievable or contradictory" (Jacenko & Jacenko [1986] FamCA 25; (1986) FLC 91-776 at [14]; Skelton & Lindop at [36]). It is important to appreciate that it is only in the event of leave being granted that the Court, at final hearing, will make a determination in respect to the accuracy or otherwise of the parties' competing factual contentions.[7]

(Emphasis added)

1. In Gadzen & Simkin [2018] FamCAFC 218, the Full Court confirmed that when considering the question of hardship, the Court must consider the costs a party would likely spend in pursuing the claim:

It would appear to be unavoidable to conclude that by "this evidence" the trial judge was referring solely to the current financial circumstances of the de facto Wife as deposed to in the three paragraphs of her affidavit the trial judge quoted in full. However, that could not "demonstrate hardship". An analysis of the potential claim of the de facto Wife was necessary to determine whether or not hardship would be occasioned to the de facto Wife if she were not granted leave to pursue that claim. Further, as the authorities to which reference has been made demonstrate, an essential element is to consider the prospective legal costs of pursuing the identified or identifiable claim. Obviously, the prospective costs may render the conclusion that no hardship would be occasioned to an applicant to pursue an uncommercial claim. The trial judge gave no consideration to this essential element and was therefore in error.[8]

(Emphasis added)

1. It is only the Applicant's costs that are relevant, when addressing the question of hardship, as the Respondent would have had to meet that expense anyway if the claim was brought within time.[9]

1. Mr Maguire submitted that the Applicant's claim was worth at least $100,000 and potentially higher. The costs of taking that claim to a trial would be in the order of $20,000-$30,000,[10] and therefore, hardship would be suffered if leave was not given.
2. Mr Maguire pointed to his client's substantial initial contributions, including two pieces of real estate - which provided the capital to invest in future real estate acquisitions - together with benefits and his regular income - averaging $100,000 per annum as against the Respondent's $50,000 - $75,000 - as being significant financial contributions. The parties also received financial assistance from the Applicant's father upon their return to Australia.
3. Post-separation, the Applicant claimed that he met most of the expenses for X, upon the understanding that he would be reimbursed some of the cost, including for school expenses and the mortgage on the Suburb D property, once the Respondent had finished her training to become a community worker, and - crucially - upon her receiving the anticipated inheritance. He accepted, however, that the Respondent has generally paid maintenance at $350-$450 per fortnight.
4. The Applicant claimed that the expenses for X and the said mortgage were significant:

In total, I will have paid approximately $137,318.25 in private school tuition fees since separation and divorce, with [Ms Pearce] only contributing a one-off amount of $5,000, which she provided from her annual financial allocation of 5,000 GBP in 2021 from the estate of the late [Mr E].

[Ms Pearce] had agreed to repay one half of these costs once she receive inheritance from her father and/or uncle's Estate but she has reneged on that promise.[11]

1. Mr Maguire also submitted that the Applicant has made, and continues to make, significant contributions as X's primary carer - made more challenging due to X's diagnosed medical issues, including Aspergers Syndrome:

134. Following separation and my move back to Australia with [X] in [mid] 2018 I have been the primary carer for [X].

135. I have arranged all of [X]'s schooling requirements and paid for all of [X]'s tuition fees, save for $5,000.00 contributed by [Ms Pearce], initially at [F School] from 2018 to 2019 and then at [G School] from 2019 till present.

136. I am responsible in addition to those tuition fees to pay all vocational care, school camps and extracurricular activities.

137. [Ms Pearce] subsequently promised to repay half of [X]'s tuition fees once she received an inheritance. [Ms Pearce] received the first portion of the inheritance from the late [Mr E] in August 2023 yet has to date not contributed anything towards [X]'s tuition fees, as promised.

138. I have also been responsible to attend to all [X]'s medical requirements including ensuring that he undertakes cognitive and psychometric testing to assist with ongoing education learning plans, having his required reassessment for [medical] related conditions including all other medical appointments.

139. Because of [X]'s special needs I have been working closely with the schools to ensure [X] gets the best education possible.

140. In particular:

a) Undertake detailed mentoring and coaching of [X] in respect of the preparation, research and production of assignments.

b) Undertake extensive work with [X] in exam and test preparation including helping him revise and learn study techniques.

c) Liaise with the school and the teachers for all subjects in relation to preparation of homework, assignments and testing at exams through the production of a learning plan for [X].

d) Arrange ongoing support from the school for [X] in the form of counselling and external referrals to additional support services (i.e., [H Centre] for Testing).

e) Ongoing relations with the school and teachers in relation to [X]'s mental health and management of issues and concerns [X] may express distress regarding factors influencing his mental health.

141.[X] has progressively improved his academic results at school over the years in part due to these close interactions and working collaboratively with the school, teachers and external agencies to provide [X] with the best opportunities to mete his academic, social and emotional challenges.

142. I am proud of him for doing so.

143. The most recent cognitive and psychometric assessment of [X] provided that he would continue to find many aspects of transition to higher requirements of year 11 and 12 challenging and will require ongoing support from the school and myself as his father, due to his diagnosis of Autism Spectrum Disorder, Specific Learning Disorder and low processing speed.

144. [Ms Pearce] has provided little support in respect of [X] and I relocated back to Australia from the UK and has not anything to do with him since she moved to Tasmania in [early] 2023, save for recently when she has approached him however he has indicated to me does not want to spend time or communicate with her.

145. As a direct result of [Ms Pearce] not having any involvement in any aspects of [X]'s life since moving to Tasmania, [X] has been managing the negative impacts of this upon his mental health through professional intervention, including sessions with a psychologist at [J Centre]; ongoing sessions with the school counsellor and ongoing sessions with [H Centre], the latter of which is at a financial cost to me.

147. The responsibilities of parenthood have fallen in effect solely on me since July 2018.[12]

(Emphasis added)

1. Given the above, Mr Maguire argued that, even accepting that the Respondent made significant contributions by way of her post-separation inheritances, the Applicant's pre and post-separation contributions must be given significant weight, resulting in, at least, a twenty percent adjustment to him of the available non-superannuation pool. Of that pool, the Applicant holds assets worth $22,000,[13] but also holds a debt for school fees of just over $22,000. As such, on a contribution basis, the payment to his client would be in the order of at least $120,000. Mr Maguire submitted that there would likely be no adjustment to his client for the factors set out in section 79(4)(d)-(g), if his client retains all his superannuation.
2. Mr Maguire accepted that even if his client can establish hardship, he must also seek to explain why it took four years, post-divorce, to file his application.
3. Mr Maguire submitted that his client, who he described as 'unsophisticated', relied upon the promises of the Respondent, evidenced by several email exchanges, that she would 'look after him' once she received her inheritances, including intimating that she would contribute toward the purchase of a home for he and X in the amount of $300,000. These promises and negotiations, he claimed, continued for years after the period for filing the application expired.
4. Given the above, he argued that the interests of justice dictated that leave be granted.

1. Mr Verney SC, Counsel for the Respondent, submitted that the Applicant has not established that he will suffer hardship if leave is not granted. He submitted that upon any reasonable assessment of the Applicant's claim, his entitlement to the net non-superannuation assets - taking his case at its highest - is no greater than 10-15%, because of the Respondent's superior post-separation financial contributions:

24. The Respondent accepts that during the course of the relationship between 2000 and 2017 (about 11 years), the parties:-

a. bought and sold properties and endured the normal "ups and downs" of doing so;

b. lived in both Australia and the UK;

c. each made various and numerous contributions;

d. had a child ([X]); and

e. were employed.

25. The Respondent contends that the Applicant has only now decided to commence proceedings because he is aware of the inheritances that the Respondent either has received or will still receive from the estate of [Mr E] and the estate of [Mr K] (the Respondent's father).

26. Importantly, no funds from either estate were received during the relationship and only approximately $12,000.00 was received prior to the expiry of the time limit.

...

28. Noting that for all intents and purposes, the Respondent took almost nothing out of the relationship, the only assets now available comprise the Applicant's superannuation, and the proceeds of the estates that remain (a portion of which have not yet been distributed to the Respondent) and the Respondent's jointly owned residential property.

29. The Respondent acknowledges that she jointly owns a property with her current partner which was purchased in [early] 2023 as joint tenants. By that time, the Respondent and her partner ([Mr L]) had to an extent mixed their monies and as a consequence there is no doubt that he has effectively contributed funds into that property. He has not been joined into these proceedings.

30. The Respondent says (at para 13) that she had expected that there was to be no further financial dealings with the Applicant and relied on that understanding when deciding to jointly purchase their property.

31. Looking at the composition of the current pool of assets (Respondent's affidavit para 9**) the jointly owned property owned by the Respondent and her partner represents an overwhelming proportion of what remains**.

32. The Respondent deposes at para 27 of her affidavit that she does not have any funds remaining from the estate of [Mr E]. However, she does acknowledge that there are still funds to be received at some time in the future.

...

37. With regard to the estate of the Respondent's father, [Mr K], given his date of death ([2023]), and the date of grant of Probate ([2024]) the Respondent says that any distribution to her should be excluded including the distribution received by her [in 2025] (para 36). In any event, at paragraph 35 the Respondent deposes that the quantum of the estate (to which she is not solely entitled) is not yet known.[14]

(Emphasis added)

1. Mr Verney submitted that 10-15% of the non-superannuation pool valued at $600,537, would, at best, result in a cash payment of between $60,537 and $90,080 to the Applicant. Given that a third party - the Respondent's partner - is likely to be joined to any proceedings, the costs of litigating the claim will likely absorb most, if not all, of any cash payment the Applicant receives, and, as such, his case for hardship is not made out.
2. Mr Verney then addressed the question of delay and the prejudice the Respondent will suffer if leave is given.
3. Mr Verney took the Court through the timeline, prior to proceedings being filed on 1 July 2024, submitting that the four-year delay was not adequately explained:

50. The Respondent says that the Applicant's delay in commencing proceedings is gross. As stated above, the delay is almost 4 years.

51. This delay occurred notwithstanding that the Applicant had engaged solicitors to advise him and act on his behalf, on his own evidence, as early as 2/2/23 - almost 18 months prior to commencing proceedings and about 2 ½ years after the time limit expired.

52. It is significant that in that time, the Respondent had got on with her life, formed a new relationship and bought a property with her new partner.

53. Does the Applicant have an adequate explanation for the delay

54. As stated above, the Applicant's delay has been gross. The Respondent says that he does not have an adequate explanation.

55. If the Applicant contended that he had a genuine and reasonable case to press, then he was foolish to leave it so long to:-

a. Instruct a lawyer (a delay of 2 ½ years); and then

b. Commence proceedings (a further 1 ½ years).

56. The Applicant says at para 161 of his affidavit that "The primary reason I have not commenced proceedings .... is because I have relied on [Ms Pearce]'s promises ...."

57. This contention by the Applicant is extremely important because again, on his own evidence, he knew by 30/10/23 that the Respondent denied making promises to him because the Respondent's solicitors wrote to the Applicant's solicitors advising them accordingly (Applicant's affidavit para 164).

58.That is, he knew 9 months prior to commencing proceedings that his contentions were disputed - and yet he continued to delay.

59.The Applicant delayed again when, on his own evidence, a response to the respondent's solicitor's letter of 30/10/23 was not sent until 8/1/24. A delay of more than 2 months.

60.The Applicant's solicitors were then informed on 19/1/24 in writing that the Respondent was not going to negotiate any further. The Applicant delayed again as follows: -

a. By not getting advice from his solicitors until 24/4/24 and instructing [M Law Firm] to "proceed with an application" (para 184);

b. By not commencing proceedings even after that for another few months.

61.The Respondent therefore says that the Applicant's delay is without adequate explanation.[15]

(Emphasis added)

1. Mr Verney emphasised that the Respondent will be significantly prejudiced if leave is given:

63. In the time that the Applicant has delayed, the Respondent has got on with life. She has:-

a. Moved residence;

b. Started new employment;

c. Started a new relationship;

d. Mixed her finances with her new partner;

e. Purchased a new home with her new partner.

64. In a very real sense, and very reasonably, she has assumed that with the effluxion of time, she could go about her life and move on.[16]

1. The net non-superannuation pool in this case is made up, primarily, of assets derived from the Respondent's post separation inheritance. Simply because such assets have been acquired post-separation does not result in them being excluded from consideration when making a property order. Nor do the other party's contributions need to be made directly to such after-acquired property, as made clear by the Full Court in Holland and Holland [2017] FamCAFC 166:

25. In a similar vein to the expressions just discussed, earlier cases often contain reference to particular property being "excluded" from consideration**. In our view it is wrong as a matter of principle to refer to any existing legal or equitable interests in property of the parties or either of them as "excluded" from, or "immune" from, consideration in applications for orders pursuant to s 79.** Again, what was said by the High Court in Stanford pertains.[16]

...

32. Importantly, while it might be convenient to describe property by reference to a characteristic (for example, as an "inheritance" or "post-separation" or "after acquired" property), its place within the ambit of s 79 is determined by the fact that it exists as a legal or equitable interest of the parties to the marriage or either of them and that the nature, form and characteristics of it and the contributions of all types made by the party suggest that it should be treated in a particular way.

33. The consideration of the three central questions earlier referred to call in each case for the exercise of discretion by a trial judge. That discretion is exercised not by reference to whether property might conveniently be described as "an inheritance" or "after-acquired" but, rather, by reference to the nature, form and characteristics of the property in question and the nature, form and extent of the parties' contributions of all types across the entirety of their relationship.

34. In respect of the last point, it is important to emphasise that the categorisation of property as "an inheritance" or as "after-acquired" property often leads to an erroneous argument that unless contributions to that property can be established, the property should be "excluded from consideration". As we have said, that argument is erroneous by reason of ignoring the fundamental premise that s 79 is directed to all of the existing legal and equitable interests in property of the parties or either of them without exclusion of any of those interests.

...

36. The position there expressed is consistent with longstanding authority. Referring to some of that authority, Kay J said in Farmer and Bramley:[25]

Guest J, having analysed several relevant cases, reaches a conclusion that there should be no consideration of s 79(4)(a), (b) and (c) issues other than those that post-date the acquisition of the lottery winnings. In my view the passages cited by Guest J from Shaw and Shaw (1989) FLC 92-010, Jones and Jones (1990) FLC 92-143 and Branicki (unreported Full Court 18 May 1990), place beyond doubt the proposition that an assessment of contributions made under s 79(4)(a), (b) and (c) does not have to bear a direct relationship to the assets as they presently exist. The court is asked to determine what is an appropriate and just and equitable order, bearing in mind not only the contributions made directly to the existing assets, but contributions made generally during the course of the relationship between the parties both to the acquisition, conservation and improvement of assets (which may or may not still exist) and to the welfare of the family in the role of homemaker and parent.

This is not to say that the Court should be blind to the circumstances in which any assets were acquired post separation. Clearly contributions made towards the acquisition of such an asset by one party and the lack of contributions made towards its acquisition by the other party may weigh heavily in the exercise of discretion. However it is quite wrong to say that contributions made under s 79(4)(a), (b) or (c) before an existing asset was acquired could have no bearing on the outcome of the proceedings.[17]

1. The Respondent also alluded to an informal property settlement entered in 2017,[18] but such agreements do not prevent a Court from making an alternative order pursuant to section 79.[19]
2. In this case the Applicant made significant financial and non- financial contributions, pre and post separation, not least of which were his contributions as X's primary carer.
3. The Respondent did not deny that the Applicant has had primary care of X post-separation, nor did she dispute the nature of X's special needs, as the Applicant described in his affidavit. Taking his case at its highest, these ongoing contributions, together with his significant financial contributions made during the relationship, would likely be given significant weight at trial. They would form part of the myriad of contributions,[20] including the Respondent's significant post separation financial contributions, to which a Court would have regard, when determining the nature and extent of the parties' contributions. The significant capital disparity between the parties, and his ongoing care of X, and the alleged promises made by the Respondent to benefit him form her inheritance once received, may also lead to a further small adjustment to the Applicant pursuant to section 75(2)(b), (c), (j), (n) and/or (o), even if he were to retain all of his superannuation entitlements.
4. Taking his case at its highest, an outcome whereby he receives 15-20% of the available assets is quite possible. This could result in him receiving a cash payment of $90,000 - $120,000 from the Respondent. Even if his legal fees were $73,000 as foreshadowed by the Respondent,[21] he would still have surplus funds available to him - ignoring any costs order that might be made if a reasonable offer is rejected.
5. The Applicant continues in his role as X's primary carer and any monies he receives will assist him with X's care. His Financial Statement does not evidence a high level of available income over expenses, nor significant assets. I am satisfied, as a result, that the Applicant has established that he, and indirectly X, will suffer hardship if leave is not provided.
6. The Applicant is, however, four years out of time. The Applicant argued that his delay was attributable to the Respondent's promises to 'look after him' from the monies she was to receive from her inheritances:

The primary reason I have not commenced proceedings before this time is because I have relied on [Ms Pearce]'s promises to repay monies advanced to her , to repay half of [X]'s tuition fees from 2018 to date, including half of the fees to be incurred in 2025; and to assist myself in acquiring a house for [X] and myself to live in when she received inheritance from the Estate of her late father and/or uncle.[22]

1. Annexed to the Applicant's affidavit were message exchanges with the Respondent corroborating his claim in this regard - not that the Respondent refuted the claim:

46. [Mr Pearce] says that I regularly made promises to him about paying him money once I got my inheritances. I agree that I did say things like this on occasion, but these messages were often sent in an attempt to placate [Mr Pearce] in the interests of trying to maintain a relationship with [X]. [Mr Pearce]'s moods were very up and down and I felt the only way I would get a relationship with [X] was if we stayed on good terms. Any comments I made were usually vague and generally optimistic thoughts, they were not intended to amount to any actual promises. I never intended for [Mr Pearce] rely on any comments from me when making financial decisions. I did not know how much was in my father's estate nor how much I would inherit from [Mr E]'s estate until recently, and even now it remains uncertain. I therefore would not have encouraged [Mr Pearce] to rely on me receiving certain amounts of money and paying any amounts on to him. [Mr Pearce] and I have been separated for so many years I did not even think he might rely on what I had said previously.

47. My old phone died and I lost all my text messages I had had with [Mr Pearce] from 2019 until 2023.[23]

1. Notwithstanding this concession, the Respondent said that she made it clear by October 2023, that she would not be honouring all of the alleged promises.[24]
2. Reading through the messages between the parties over the years, it is clear that the Respondent made a number of promises to help the Applicant out financially when she was in a financial position to do so, including:
   • In 2020 she stated "ever to come into any money I would definitely help you out a lot more. Despite what we have been through I don't want you and [X] struggling" and;
   • In November 2022_; "Yes you pay for everything but in the end I pay you back and when poor dad is gone you get a house. Maybe It would be nice to have a man that doesn't constantly think [...] is getting larger."[25]_
3. The Applicant stated that the messaging continued, and he then engaged a lawyer. In August 2023, the Applicant sent the Respondent an email[26] referring to a Deed of Settlement that her lawyers had drawn and seeking a greater sum of money:

I received correspondence from your solicitor, [Mr O] today via email. They will receive a response from my solicitor, [M Law Firm], in due course in that regard. This correspondence will include details of finalising the other monies owed to me for repayment of 50% of [X]'s tuition fees paid to date, plus 50% of fees for 2023, 2024 and 2025. As previously advised, this may be finalised by drawing up a separate Child Support Agreement. Your correspondence does not identify or acknowledge this additional debt, thereby no Deed will be signed until this matter is also addressed and resolved.

...

I bring your attention to the following in regard to [Mr E]'s Chattels and cost incurred by my father to ship these from the UK to NSW then NSW to Tasmania:-

1. They were left to your father in [Mr E]'s will, not to you.

2. At the time of [Mr E]'s passing we were married and thereby I have a claim on this property.[27]

(Emphasis added)

1. The email made it clear that as of August 2023, that the Respondent wanted to settle the Applicant's potential claim and had drawn documents to achieve that end. The Respondent was well aware by that time that the Applicant was expecting to receive monies from her and was not prepared to settle on her terms. Importantly, it was not suggested by that stage, that she would not consider his position because he was out of time.
2. The parties' lawyers continued to exchange correspondence until a letter was received on 30 October 2023 where it became clear that the Respondent did not intend to honour the entirety of her promises:

[Ms Pearce] subsequently denied making any such promises in a letter dated 30th October 2023 (from [N Law Firm] to [M Law Firm]). [Ms Pearce] then changed this statement in her Responding Affidavit (to my Initiating Application's Affidavit), once she was presented with evidence given to her through a letter dated January 08, 2024, To [N Law Firm].

In the letter to [M Law Firm] from [N Law Firm] dated 30 October 2023 [Ms Pearce] claims that she only agreed to pay for half of [X]'s tuition fees once she was in a position to do so (she inherits). Despite receiving the first portion of inheritance in August 2023 from the estate of the late [Mr E], [Ms Pearce] has not contributed to [X]'s tuition fees.[28]

(Emphasis added)

1. I note that the Respondent denied that she made a promise to pay half of X's school fees[29]. Ultimately, this may be correct, but at this stage I am required to take the Applicant's case at its highest.
2. The Applicant explained that his lawyer sent a further letter that was responded to in January 2024:

On 19 January 2024, my lawyers [M Law Firm] received correspondence from Simmons Wolf Hagen Lawyers with who [Mr O] was now employed with as a consultant which indicated that [Ms Pearce] was not going to negotiate any further and that Simmons Wolf Hagen had instructions to accept service of any proceedings issued by me.

1. He then sought advice about filing, which he received in April 2024, and filed proceedings in July 2024.
2. This is not a case where the there was no interaction between the parties prior to or after the date for filing proceedings passed. The Respondent continued to make promises until the end of 2022 and engaged with the Applicant's lawyers throughout 2023. Her final position, as alleged - that she would not pay him all the money he sought - was not known until October 2023, and perhaps not cemented until January 2024.[30] Importantly, the alleged agreement to pay half the school fees is yet to be honoured.
3. The process was slow, but negotiations were ongoing, and the Respondent cannot reasonably claim that she was unaware of the Applicant's potential claim. She did purchase a property with her partner - who holds his interest upon trust for her - but did so knowing that the Applicant expected to receive monies from her inheritance. In any event, the Applicant is not seeking a transfer of any property to him, he simply seeks a cash payment. The argument as to the intermingling of her finances and property with her partner therefore holds less weight than it otherwise would. Her partner can also join the proceedings to protect his interests, if necessary.
4. Given the above, I am not satisfied that the Respondent has been so prejudiced by the Applicant's delay, that the interest of justice is met by denying the Applicant leave. There are no other factors that would stand in the way of leave being granted.

1. I am satisfied that the Applicant, and indirectly X, will suffer hardship if he is not provided with leave to file his application for relief pursuant to section 79 of the Act, out of time. I am also satisfied that the Respondent will not suffer such prejudice that it would not be in the interests of justice for leave to be granted.
2. I will make the orders set out at the commencement of these Reasons. This includes sending the parties to mediation.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull.

[1] Affidavit of Ms Pearce 25 February 2025 ('Wife's Affidavit') [19]-[40].

[2] Exhibit A1: Applicant's Tender Bundle - Notice to Admit Facts.

[3] In his Case Outline he sought 15-20% for contributions with no further adjustment, resulting in a payment to him of between $104,000 and $140,000.

[4] During oral submissions the makeup and value of the asset pool for the purpose of the argument, with reference to paragraph 9 of the Respondent's affidavit, was determined.

[5] Family Law Act 1975 (Cth) ('FLA').

[6] FLA (n 5) s44(4)(a).

[7]Hardwick & Hardwick (No 2) [2022] FedCFamC1A 216, 23-31.

[8]Gadzen & Simkin [ 2018] FamCAFC 218, [42].

[9]Skelton & Lindop [2022] FedCFamC1A 47 [37].

[10]Costs Notice filed by Mr Pearce 28 February 2025, Item 4 - Anticipated Costs.

[11]Affidavit of Mr Pearce ('Husband's Affidavit') 25 February 2025, [123]-[124].

[12] Husband's Affidavit (n 5) [134]-[147].

[13] Wife's Affidavit (n 1) [9], in particular the reference to Motor Vehicle 1 and Motor Vehicle 2.

[14] Case Outline field by Ms Pearce 28 February 2025 ('Wife's Case Outline'), [24]-[26], [28]-[32], [37].

[15] Wife's Case Outline (n 14) [50]-[61].

[16] Wife's Case Outline (n 14) [63]-[64].

[17] Holland and Holland [2017] FamCAFC 166, [25],[32]-[34],[36].

[19] See Woodland & Todd [2005] FamCA 161.

[20] Jabour & Jabour [2019] FamCAFC 78.

[21] Costs Notice filed by Ms Pearce 11 April 2025.

[22] Husband's Affidavit (n 2) [161].

[23] Wife's Affidavit (n 1) [46]-[47].

[24] Husband's Affidavit (n 5) [163].

[25] Husband's Affidavit (n 5) [163].

[26] Wife's Affidavit (n 1) annexure H.

[28] Husband's Affidavit (n 5) [164]-[165].

[30] Husband's Affidavit (n 5) [164].