Benjamin & Benjamin

Case [2025] FedCFamC2F 106

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Benjamin & Benjamin [2025] FedCFamC2F 106

File number(s): BRC 11032 of 2023
Judgment of: JUDGE BERTONE
Date of judgment: 5 February 2025
Catchwords: FAMILY LAW – Parenting - Where final parenting orders were made on 7 April 2022 for children to live in equal time arrangement and for parents to have joint decision making – Where Mother filed an application to reconsider parenting orders 18 months later – Where Father opposes change to orders – Where family report does not recommend a change to care arrangements under current parenting orders – Where section 65DAAA applies – where there has been no significant change in circumstances
Legislation:

Family Law Act 1975 (Cth), Part VII, ss60CC, 65DAAA, 69ZN, 69ZQ, 69ZX

Federal Circuit and Family Court of Australia (Family Law) Rules 2021, Chapter 7

Cases cited:

Baghti & Baghti and Ors [2015] FamCAFC 71

McEnearney & McEnearney (1980) FLC 90-866

Radecki & Radecki [2024] FedCFamC1A 246

Rice & Asplund [1979] FamCA 80

Searson & Searson [2017] FamCAFC 119

SPS & PLS [2008] FamCAFC 16

Whisprun Pty Ltd & Dixon [2003] HCA.

Division: Division 2 Family Law
Number of paragraphs: 122
Date of last submission/s: 29 October 2024
Date of hearing: 18 October 2024
Place: Brisbane
Counsel for the Applicant: Mr P Baston
Solicitor for the Applicant: Keane Legal
Solicitor for the Respondent: Mr Benjamin on his own behalf

ORDERS

BRC 11032 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MS BENJAMIN

Applicant
AND:

MR BENJAMIN

Respondent

ORDER MADE BY:

JUDGE BERTONE

DATE OF ORDER:

5 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The Mother’s Amended Initiating Application filed on 25 July 2024 is dismissed.

2.With respect to any order for costs sought by the Father:

(a)Within 21 days, notice must first be given to the Mother as to the quantum of costs sought;

(b)If agreement cannot be reached within 14 days after notice is given, then the Father shall file and serve written submissions, not exceeding five pages, addressing the issue of costs within 28 days of giving notice; and

(c)The Mother shall file and serve written submissions in reply, not exceeding five pages, within 14 days after service of the Father’s submissions.

3.The question of costs shall then be determined in Chambers on the basis of the parties’ written submissions with Judgment being delivered as soon as practicable thereafter.

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…

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Benjamin & Benjamin [2025] FedCFamC2F 106
Case
[2025] FedCFamC2F 106
Decision Date

CaseChat Overview and Summary

In the matter of Ms Benjamin, the applicant, and Mr Benjamin, the respondent, the Federal Circuit and Family Court of Australia (Division 2) was tasked with considering Ms Benjamin’s application to reconsider final parenting orders made on 7 April 2022. The initial orders established an equal time arrangement for the children and joint decision making between the parents. Ms Benjamin sought to modify these orders 18 months later, a request opposed by Mr Benjamin. The court had to determine whether the application to reconsider should be granted, considering the lack of a significant change in circumstances and the applicability of section 65DAAA of the Family Law Act 1975 (Cth).

The primary legal issue before the court was whether there had been a significant change in circumstances since the final parenting orders were made, justifying a reconsideration of those orders. The court also had to assess the family report which did not recommend a change to the current care arrangements. Furthermore, the court needed to consider the implications of section 65DAAA, which generally prevents reconsideration of parenting orders unless there has been a significant change in circumstances. The court had to balance the applicant's right to seek a reconsideration against the need for stability and certainty in the children’s care arrangements.

In delivering the judgment, Judge Bertone found that there had not been a significant change in circumstances since the final parenting orders were made. The family report supported the maintenance of the current arrangements, highlighting the children's stability and well-being. Given the absence of any substantial change in circumstances and considering the principles outlined in section 65DAAA, the court dismissed the application to reconsider. The judge further ordered that the matter of costs would be determined through written submissions and a subsequent hearing in chambers.

The final orders of the court were that the Mother’s Amended Initiating Application filed on 25 July 2024 was dismissed. The court also set out a process for determining the costs associated with the proceedings, requiring the Father to provide notice to the Mother of the quantum of costs sought, followed by written submissions and a final determination in chambers. The form of the order is subject to entry in the Court’s records and may be subject to review or variation as permitted by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

BRC 11032 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS BENJAMIN

Applicant

AND:

MR BENJAMIN

Respondent

ORDER MADE BY:

JUDGE BERTONE

DATE OF ORDER:

5 FEBRUARY 2025

THE COURT ORDERS THAT:

1. The Mother’s Amended Initiating Application filed on 25 July 2024 is dismissed.

2. With respect to any order for costs sought by the Father:

(a) Within 21 days, notice must first be given to the Mother as to the quantum of costs sought;

(b) If agreement cannot be reached within 14 days after notice is given, then the Father shall file and serve written submissions, not exceeding five pages, addressing the issue of costs within 28 days of giving notice; and

(c) The Mother shall file and serve written submissions in reply, not exceeding five pages, within 14 days after service of the Father’s submissions.

3. The question of costs shall then be determined in Chambers on the basis of the parties’ written submissions with Judgment being delivered as soon as practicable thereafter.

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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