Benjamin & Benjamin [2025] FedCFamC1A 199 (31 October 2025)

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

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

1. By Notice of Appeal filed 22 August 2025, the appellant appeals an order as to costs made in her absence by a judge of the Federal Circuit and Family Court of Australia (Division 2).
2. The order the subject of the appeal required the appellant to pay the respondent's costs fixed in the sum of $11,725.

1. The appellant and respondent were engaged in parenting proceedings which were resolved by consent orders on 7 April 2022.
2. Subsequent to the making of those orders, on 21 August 2023 the appellant filed an Initiating Application seeking to set aside the orders. The Initiating Application was dismissed by the primary judge in circumstances where the Court was not satisfied that there had been a significant or material change in circumstances pursuant to s 65DAAA of the Family Law Act 1975 (Cth) ("the Act"). Consequent on the dismissal, the primary judge made orders as to the procedure to be adopted in the event that any party sought costs.
3. The respondent sought the appellant pay his costs. The appellant did not comply with the orders for the filing of submissions and did not appear at the hearing. On the hearing, one of the issues before the primary judge was whether the application for costs sought by the respondent was brought in compliance with the orders made by the primary judge and if so whether the circumstances justified the making of an order and whether that order should be on an indemnity or a party/party basis.
4. The primary judge was satisfied that there had been substantial compliance with her directions, declined to make an order for indemnity costs, but made an order in a fixed sum.

1. At the commencement of the hearing of the appeal the appellant's attention was drawn to the provisions of r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") which provides as follows:

(1) The court may at any time vary or set aside an order, if:

1. The appellant indicated that she was unaware of the rule until it was brought to her attention. Albeit quaintly expressed as ignorantia juris non excusat the fact remains that benightedness does not absolve compliance.
2. The proper course for the appellant to have adopted is to have made an application pursuant to r 10.13(1)(a) challenging the orders made in her absence rather than filing a Notice of Appeal. The jurisdiction of this Court to hear appeals should not be resorted to where there exist alternate remedies at first instance.
3. In that respect, I note the Full Court in Nellie & Nellie (2024) FedCFamC1A 171 recently observed as follows:
   1. In this case, we have decided to dismiss the appeal on the basis that the appellant has not, prior to filing the appeal, taken all reasonably available steps to address his grievance that he had not been afforded the opportunity to make submissions in respect to the question of costs. Further, we question how the appellant can logically advance a complaint of a denial of procedural fairness where they have not availed themselves of every opportunity to advance their case.

...

1. The appellant did not follow the proper procedural steps before filing his Notice of Appeal in respect to the question of costs. In Lorde & Chu [2014] FamCAFC 228 at [36], the Full Court stated:

... it has long been established in this jurisdiction that where a party seeks to set aside orders made in his or her absence, the proper course is for that party to apply at first instance for a rehearing rather than seek to have the matter dealt with by a way of an appeal (Wilkes and Wilkes [1981] FamCA 41; (1981) FLC 91-060). Moreover, Rule 16.05 of the Federal Circuit Court Rules 2011 (Cth) [now r 10.13] provides for a rehearing at first instance in such circumstances.

1. In Beale & Harvie [2023] FedCFamC1A 181 at [15], Austin J echoed these sentiments when summarily dismissing an appeal in circumstances where, notwithstanding its lack of reasonable prospects of success, the appellant had commenced the appeal without exhausting their remedies at first instance. There are significant public policy reasons for requiring parties to take that course which is "more appropriate, and far less expensive".

1. The observations of that Full Court are apposite to Ground 2 in the Notice of Appeal. I am not persuaded that there is any reason why this court should depart from the clearly expressed position of earlier Full Courts.
2. Consequently, the appeal will be dismissed. In doing so I note that there is no time limit specified in r 10.13 that prevents the appellant from following the course she should have followed, albeit she may be at risk on costs.

1. The appeal will be dismissed.
2. In circumstances where each party was unrepresented, no order for costs will be made.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Schonell.