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Blom & Eaton

Blom & Eaton

Case [2025] FedCFamC2F 632 23 May 2025

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Blom & Eaton [2025] FedCFamC2F 632

File number(s): ADC 2600 of 2024

Judgment of: JUDGE DICKSON

Date of judgment: 23 May 2025

Catchwords: FAMILY LAW – PROPERTY – PRACTICE AND PROCEDURE – Application for leave to issue property settlement proceedings out of time pursuant to section 44(3) of the Family Law Act 1975 (Cth) – Marriage of seven years –Application filed two years and seven months out of time – Consideration of length of delay – Whether the applicant has established a prima facie case – Where hardship is established – Prospective costs considered – Where the Court declines to exercise its discretion to proceed out of time – Anticipated legal costs disproportionate to ultimate likely claim – Application dismissed.

Legislation:
Evidence Act 1995 (Cth) s 140.

Family Law Act 1975 (Cth) ss 44, 79.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.06.

Cases cited:

Aldred & Aldred (No 2) (1985) FLC 91-602

Althaus & Althaus [1979] FamCA 47

Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1

Bellfield & Bellfield [2020] FCCA 2871

Bevan & Bevan [2013] FamCAFC 116

Briginshaw & Briginshaw (1938) 60 CLR 336

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

Edmunds & Edmunds [2018] FamCAFC 121

Frost & Nicholson (1981) FLC 91-051

Gadzen & Simkin [2018] FamCAFC 218

Hall & Hall [1979] FamCA 50

Hickey & Attorney-General (Intervenor) (2003) FLC 93-143

Hines & Easton [2023] FedCFamC2F 311

Holland & Holland [2017] FamCAFC 166

Jacenko & Jacenko (1986) FLC 91-776

Kennon & Kennon [1977] FamCA 27

Montano & Kinross [2014] FamCAFC 231

Richardson & Richardson [2008] FamCAFC 107

Sharp & Sharp [2011] 50 FamCAFC 150

Skelton & Lindop [2022] FedCFamC1A 47

Slocomb & Hedgewood (2015) FLC 93-678

Stanford& Stanford [2012] HCA 52

Whitford & Whitford (1979) FLC 90-612

Division: Division 2 Family Law

Number of paragraphs: 120

Date of hearing: 4-5 December 2024 and 28 April 2025

Place: Adelaide

Counsel for the Applicant: P. Heinrich (4-5 December 2024) and J. Dillon (28 April 2025)

Solicitor for the Applicant: Websters Lawyers (4-5 December 2024) and Shorter Legal (28 April 2025)

Counsel for the Respondent: P. Bullock

Solicitor for the Respondent: Howe Jenkin
ORDERS

ADC 2600 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BLOM

Applicant

AND:
MR EATON

Respondent

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

23 MAY 2025

THE COURT ORDERS THAT:
1.The Application for leave to proceed with the application for property settlement out of time, pursuant to section 44(3) of the Family Law Act 1975 (Cth) is hereby dismissed.
2.The Initiating Application filed 5 June 2024, the Amended Initiating Application filed 26 November 2024 and the Response to Final Orders filed 11 July 2024 are hereby dismissed.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Blom & Eaton [2025] FedCFamC2F 632
Case: [2025] FedCFamC2F 632
Decision Date: 23 May 2025

CaseChat Overview and Summary

The matter involved an application by Ms Blom to proceed with property settlement proceedings out of time against Mr Eaton, following the breakdown of their seven-year marriage. The Federal Circuit and Family Court of Australia was tasked with determining whether Ms Blom should be granted leave to file her application for property settlement more than two years and seven months after the time limit specified in section 44(3) of the Family Law Act 1975 (Cth). The court was required to assess the delay, whether Ms Blom had established a prima facie case, and the potential hardship that might result from denying her leave.

In deciding the matter, Judge Dickson considered the length of the delay and the reasons provided by Ms Blom. The judge noted that the delay was substantial, spanning over two years. While Ms Blom argued that she had established a prima facie case and demonstrated significant hardship, the judge was also mindful of the prospective legal costs, which were anticipated to be disproportionate to the likely outcome of the proceedings. The court concluded that, despite the hardship Ms Blom faced, the exercise of discretion to proceed out of time was not warranted in this instance.

The court dismissed the application for leave to proceed out of time, resulting in the dismissal of the initiating application, the amended initiating application, and the response to final orders. The decision underscores the court's reluctance to permit significant delays in filing property settlement applications unless exceptional circumstances are demonstrated. The court's order reflects its consideration of the balance between the interests of the parties and the efficient administration of justice.

Orders

Orders of the court

ADC 2600 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS BLOM

Applicant

AND:

MR EATON

Respondent

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

23 MAY 2025

THE COURT ORDERS THAT:

1. The Application for leave to proceed with the application for property settlement out of time, pursuant to section 44(3) of the Family Law Act 1975 (Cth) is hereby dismissed.

2. The Initiating Application filed 5 June 2024, the Amended Initiating Application filed 26 November 2024 and the Response to Final Orders filed 11 July 2024 are hereby dismissed.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Blom & Eaton [2025] FedCFamC2F 632

Cases Citing This Decision

No citing cases yet.

Cases Cited

Hines & Easton [2023] FedCFamC2F 311
Citation 1 (Para 46)

…is to be exercised must depend on the facts of the particular case. It has been described as an “idiosyncratic decision.”[33] [33] Hines & Easton [2023] FedCFamC2F 311, [85].…
Skelton & Lindop [2022] FedCFamC1A 47
Citation 2 (Para 11)

…In considering whether or not Ms Blom has established a prima facie case, her evidence is to be taken at its highest.[46] [46] Skelton & Lindop [2022] FedCFamC1A 47.…
BELLFIELD & BELLFIELD [2020] FCCA 2871
Citation 3 (Para 44)

…e degree of the hardship, which would be suffered unless leave was granted.[31] [31] Slocomb & Hedgewood (2015) FLC 93-678; Bellfield & Bellfield [2020] FCCA 2871, [132].…
Gadzen & Simkin [2018] FamCAFC 218
Citation 4 (Para 40)

…plication are relevant in this assessment.[26] [25] Edmunds & Edmunds [2018] FamCAFC 121. [26] Whitford & Whitford (1979) FLC 90-612; Gadzen & Simkin [2018] FamCAFC 218.…
Edmunds & Edmunds [2018] FamCAFC 121
Citation 5 (Para 39)

…so would not, in the final result, alleviate the hardship.[24] [24] Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; Edmunds & Edmunds [2018] FamCAFC 121.…
Holland & Holland [2017] FamCAFC 166
Citation 6 (Para 19)

…uisition of assets post-separation does not necessarily result in them being excluded when considering a property order.[51] [51] Holland & Holland [2017] FamCAFC 166.…
Montano & Kinross [2014] FamCAFC 231
Citation 7 (Para 37)

…time is to be balanced against the need for parties to ‘get on with life’ free from the prospect of future litigation. [22] Montano & Kinross [2014] FamCAFC 231, [14].…
Stanford v Stanford [2012] HCA 52
Citation 8 (Para 7)

…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 35.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 t…
Richardson & Richardson [2008] FamCAFC 107
Citation 9 (Para 1)

…& 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) FLC 91-051, 76,424. [42] Frost & Nicholson (1981) FLC 91-051, 78,45. [43] Whi…
Brisbane South Regional Health Authority v Taylor [1996] HCA 25
Citation 10 (Para 38)

…ries of cases may sometimes be overridden by the facts of an individual case…[23] [23] Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541, 547.…
Beecham Group Ltd v Bristol Laboratories Pty ltd [1968] HCA 1
Citation 11 (Para 39)

…ave will not be granted if to do so would not, in the final result, alleviate the hardship.[24] [24] Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; Edmunds & Edmunds [2018] FamCAFC 121.…
Briginshaw v Briginshaw [1938] HCA 34
Citation 12 (Para 26)

…All facts in dispute must be proved on the balance of probabilities.[19] [19] Evidence Act 1995 (Cth) s 140; Briginshaw & Briginshaw (1938) 60 CLR 336.…
Bevan & Bevan [2013] FamCAFC 116
Citation 13 (Para 6)

…followed a four-step process identified in the cases of Hickey & Attorney-General (Intervenor) (2003) FLC 93-143 at 78,386 at [39] and Bevan & Bevan [2013] FamCAFC 116 at [60].…
Kennon & Kennon [1977] FAMCA 27
Citation 14 (Para 16)

…ry substantial costs given that he had understood that the parties had finalised their financial affairs. [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. BACKGROUND…
[1979] FAMCA 47 [1979] FAMCA 47
Citation 15 (Para 1)

…r the applicant to remain “tied into a financial dependence” upon the respondent may amount to hardship.[44] [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 1…
[1979] FAMCA 50 [1979] FAMCA 50
Citation 16 (Para 42)

…equences that follow from the loss of that right may establish hardship which is to be determined on the facts of each case.[29] [27] Hall & Hall [1979] FamCA 50. [28] Sharp & Sharp [2011] 50 FamCAFC 150. [29] Sharp & Sharp [2011] 50 FamCAFC 150, [17].…

Legislation Cited

Family Law Act 1975 (Cth) 44, 79
3 mentions (from Para 1)
Evidence Act 1995 (Cth) 140
1 mention (from Para 26)
Family Law Amendment Act 1983 (Cth)
1 mention (from Para 31)

File number(s):	ADC 2600 of 2024
Judgment of:	JUDGE DICKSON
Date of judgment:	23 May 2025
Catchwords:	FAMILY LAW – PROPERTY – PRACTICE AND PROCEDURE – Application for leave to issue property settlement proceedings out of time pursuant to section 44(3) of the Family Law Act 1975 (Cth) – Marriage of seven years –Application filed two years and seven months out of time – Consideration of length of delay – Whether the applicant has established a prima facie case – Where hardship is established – Prospective costs considered – Where the Court declines to exercise its discretion to proceed out of time – Anticipated legal costs disproportionate to ultimate likely claim – Application dismissed.
Legislation:	Evidence Act 1995 (Cth) s 140. Family Law Act 1975 (Cth) ss 44, 79. Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.06.
Cases cited:	Aldred & Aldred (No 2) (1985) FLC 91-602 Althaus & Althaus [1979] FamCA 47 Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 Bellfield & Bellfield [2020] FCCA 2871 Bevan & Bevan [2013] FamCAFC 116 Briginshaw & Briginshaw (1938) 60 CLR 336 Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541 Edmunds & Edmunds [2018] FamCAFC 121 Frost & Nicholson (1981) FLC 91-051 Gadzen & Simkin [2018] FamCAFC 218 Hall & Hall [1979] FamCA 50 Hickey & Attorney-General (Intervenor) (2003) FLC 93-143 Hines & Easton [2023] FedCFamC2F 311 Holland & Holland [2017] FamCAFC 166 Jacenko & Jacenko (1986) FLC 91-776 Kennon & Kennon [1977] FamCA 27 Montano & Kinross [2014] FamCAFC 231 Richardson & Richardson [2008] FamCAFC 107 Sharp & Sharp [2011] 50 FamCAFC 150 Skelton & Lindop [2022] FedCFamC1A 47 Slocomb & Hedgewood (2015) FLC 93-678 Stanford& Stanford [2012] HCA 52 Whitford & Whitford (1979) FLC 90-612
Division:	Division 2 Family Law
Number of paragraphs:	120
Date of hearing:	4-5 December 2024 and 28 April 2025
Place:	Adelaide
Counsel for the Applicant:	P. Heinrich (4-5 December 2024) and J. Dillon (28 April 2025)
Solicitor for the Applicant:	Websters Lawyers (4-5 December 2024) and Shorter Legal (28 April 2025)
Counsel for the Respondent:	P. Bullock
Solicitor for the Respondent:	Howe Jenkin

ADC 2600 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS BLOM Applicant
AND:	MR EATON Respondent

ORDER MADE BY:	JUDGE DICKSON
DATE OF ORDER:	23 MAY 2025