FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pearce & Pearce [2025] FedCFamC2F 571
File number(s): LNC 447 of 2024 Judgment of: JUDGE TURNBULL Date of judgment: 7 May 2025 Catchwords: FAMILY LAW – EXTENSION OF TIME – Where an application for a property order is filed four years out of time – Whether the Court should grant leave to institute proceedings – Whether the Applicant will suffer from hardship if leave is not granted – The impact of the legal costs to be paid by the parties on the question of hardship – Whether there is a reasonable explanation for delay – Whether the Respondent will be prejudiced if leave allowed Legislation: Family Law Act 1975 (Cth) Cases cited: Gadzen & Simkin [2018] FamCAFC 218
Hardwick & Hardwick (No 2) [2022] FedCFamC1A 216, (2022) FLC 94-126
Holland and Holland [2017] FamCAFC 166
Jabour & Jabour [2019] FamCAFC 78
Skelton & Lindop [2022] FedCFamC1A 47
Woodland & Todd [2005] FamCA 161, (2005) FLC 93-217, (2005) 33 Fam LR 177
Division: Division 2 Family Law Number of paragraphs: 51 Date of last submission/s: 11 April 2025 Date of hearing: 3 March 2025 and 11 April 2025 Place: Hobart Counsel for the Applicant: Mr Maguire Solicitor for the Applicant: Maguire Family Law Counsel for the Respondent: Mr Verney SC Solicitor for the Respondent: Simmons Wolfhagen Pty Limited ORDERS
LNC 447 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PEARCE
Applicant
AND: MS PEARCE
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
7 MAY 2025
THE COURT ORDERS THAT:
1.Leave be granted to the Applicant pursuant to section 44(3) of the Family Law Act 1975 (Cth) to bring an Application pursuant to section 79, out of time.
2.The Applicant make, file and serve an Amended Initiating Application within 21 days of the date of this Order.
3.The Respondent make, file and serve a Response within 21 days of receiving the Applicant’s material.
4.That the parties must attend for property mediation with an accredited Family Dispute Resolution Practitioner (“FDRP”) as nominated by B Centre (noting an appointment in City C on Thursday 10 July 2025 at 9.30 a.m.) or otherwise as directed by B Centre.
5.That within fourteen days each legal representative or self-represented litigant is to contact B Centre (…@... or …) to confirm arrangements for mediation.
6.That within fourteen days of being notified of the nominated FDRP, each party must send to the FDRP documents outlining the dispute including the following:
(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.
7.That unless otherwise exempted from payment, the parties must each pay an amount equivalent to half of the Conciliation Conference fee in…
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CaseChat Overview and Summary
The court granted leave to Mr Pearce to bring the property settlement application out of time. The judge found that the delay was not unreasonable given the circumstances of the case and that Ms Pearce would not be prejudiced if leave were granted. The judge also found that Mr Pearce would suffer hardship if leave were not granted, as he would be unable to finalise the property settlement. The judge took into account the legal costs incurred by both parties but found that this did not outweigh the need for the court to exercise its discretion in favour of granting leave. The court ordered that Mr Pearce file an amended initiating application within 21 days, and that Ms Pearce respond within 21 days of receiving Mr Pearce's material. The court also ordered that the parties attend property mediation and comply with several procedural requirements before the matter is listed for further case management.
The court's decision was based on a careful consideration of the relevant factors under section 44(3) of the Family Law Act 1975 (Cth). The judge found that the delay was not unreasonable given the circumstances of the case, and that Ms Pearce would not be prejudiced if leave were granted. The judge also found that Mr Pearce would suffer hardship if leave were not granted, as he would be unable to finalise the property settlement. The judge took into account the legal costs incurred by both parties but found that this did not outweigh the need for the court to exercise its discretion in favour of granting leave. The court's decision was balanced and took into account all relevant factors.
The court ordered that Mr Pearce file an amended initiating application within 21 days, and that Ms Pearce respond within 21 days of receiving Mr Pearce's material. The court also ordered that the parties attend property mediation and comply with several procedural requirements before the matter is listed for further case management. The court's orders ensure that the matter is progressed in an efficient and effective manner, and that the parties have an opportunity to attempt to resolve the property settlement dispute through mediation. The court's orders also ensure that the matter is managed in a way that is fair and just to both parties.
Orders
Orders of the court
LNC 447 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR PEARCE
Applicant
AND:
MS PEARCE
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
7 MAY 2025
THE COURT ORDERS THAT:
1. Leave be granted to the Applicant pursuant to section 44(3) of the Family Law Act 1975 (Cth) to bring an Application pursuant to section 79, out of time.
2. The Applicant make, file and serve an Amended Initiating Application within 21 days of the date of this Order.
3. The Respondent make, file and serve a Response within 21 days of receiving the Applicant’s material.
4. That the parties must attend for property mediation with an accredited Family Dispute Resolution Practitioner (“FDRP”) as nominated by B Centre (noting an appointment in City C on Thursday 10 July 2025 at 9.30 a.m.) or otherwise as directed by B Centre.
5. That within fourteen days each legal representative or self-represented litigant is to contact B Centre (…@... or …) to confirm arrangements for mediation.
6. That within fourteen days of being notified of the nominated FDRP, each party must send to the FDRP documents outlining the dispute including the following:
(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.
7. 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.
8. 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.
9. 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.
10. 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.
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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