Lehtinen & Lehtinen

Case [2025] FedCFamC1A 69

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Lehtinen & Lehtinen [2025] FedCFamC1A 69

Appeal from: Lehtinen & Lehtinen (No 4) [2024] FedCFamC2F 1795
Appeal number: NAA 373 of 2024
File number: BRC 18389 of 2020
Judgment of: ALDRIDGE J
Date of judgment: 17 April 2025
Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the primary judge made an order that final parenting orders be reconsidered – Where the primary judge found s 65DAAA did not require a change in circumstances for the reconsideration of final parenting orders – Where the subsequent Full Court decision in Radecki & Radecki [2024] FedCFamC1A 246 (“Radecki”) rendered the primary judge’s construction of s 65DAAA erroneous – Where the respondent contended Radecki should not be followed – Where the Full Court decision is binding – Discussion of Radecki and the codification of Rice and Asplund (1979) FLC 90-725 – Where the appeal is flawed as the order is not a judgment from which an appeal lies – Appeal dismissed.
Legislation:

Family Law Act 1975 (Cth) s 65DAAA

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 26

Cases cited:

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Blair v Curran (1939) 62 CLR 464; [1939] HCA 23

Bolitho and Cohen (2005) FLC 93-224; [2005] FamCA 458

Carriel & Lendrum (2015) FLC 93-640; [2015] FamCAFC 43

Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28

D and Y (1995) FLC 92-581; [1995] FamCA 146

Driclad Pty Ltd v Federal Commissioner of Taxation (1966) 121 CLR 45; [1966] HCA 91

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22

Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152

Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150

Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9

Radecki & Radecki [2024] FedCFamC1A 246

Rice and Asplund (1979) FLC 90-725; [1979] FamCA 80

Rilak (No 2) [2022] FedCFamC1A 100

Sciacchitano & Zhukov [2024] FedCFamC1A 224

SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16

Yule v Junek (1978) 139 CLR 1; [1978] HCA 4

Number of paragraphs: 35
Date of hearing: 10 April 2025
Place: Sydney (via video link)
Counsel for the Appellant: Mr Tonge
Solicitor for the Appellant: HopgoodGanim Lawyers
Counsel for the Respondent: Mr Fellows
Solicitor for the Respondent: Feeney Family Law

ORDERS

NAA 373 of 2024
BRC 18389 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR LEHTINEN

Appellant
AND:

MS LEHTINEN

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

17 APRIL 2025

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The Application in an Appeal filed 27 March 2025 is 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…

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AGLC
Lehtinen & Lehtinen [2025] FedCFamC1A 69
Case
[2025] FedCFamC1A 69
Decision Date

CaseChat Overview and Summary

The appeal in Lehtinen & Lehtinen involved Mr. Lehtinen, the appellant, and Ms. Lehtinen, the respondent, in a family law matter concerning parenting orders. The primary judge had ordered a reconsideration of the final parenting orders, but the subsequent Full Court decision in Radecki & Radecki established a binding interpretation of s 65DAAA, which contradicted the primary judge’s construction. Mr. Lehtinen argued against following the Radecki decision, but the court held that Full Court decisions are binding unless overruled by a higher court or found plainly erroneous. The appeal raised a preliminary issue regarding whether the orders in question constituted a judgment from which an appeal could be taken, ultimately concluding that the orders did not meet the criteria for appeal under the Federal Circuit and Family Court of Australia Act 2021.

The legal issues the court had to address were whether the reconsideration order constituted a judgment from which an appeal could be taken, and whether the Full Court decision in Radecki should be followed. The court found that the reconsideration order did not meet the definition of a judgment or decree as per s 7 of the Federal Circuit and Family Court of Australia Act 2021, as it did not conclusively determine the rights of the parties. Furthermore, the court determined that the Full Court decision in Radecki was binding and correctly interpreted s 65DAAA. The court emphasised that the reconsideration order was merely a ruling on the way to making final parenting orders, which could be reversed at any time and did not create new rights or alter existing ones.

In summary, the court dismissed the appeal due to the orders not constituting a judgment from which an appeal could be taken, and upheld the binding nature of the Full Court decision in Radecki. The court confirmed that Full Court decisions are binding unless they are overruled by a higher court or found plainly erroneous. The appeal was dismissed, and the application in appeal filed on 27 March 2025 was also dismissed. The court’s reasons for judgment were subject to review for minor errors or variations in the order.

Orders

Orders of the court

NAA 373 of 2024

BRC 18389 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR LEHTINEN

Appellant

AND:

MS LEHTINEN

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

17 APRIL 2025

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The Application in an Appeal filed 27 March 2025 is 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There is, however, a preliminary issue to be resolved. It is whether the orders constitute a decree against which an appeal may be taken.IS THERE A JUDGMENT FROM WHICH AN APPEAL LIES? Section 26 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) empowers the court to hear appeals against “a judgment” which is defined by s 7 as meaning “a judgment, decree or order, whether final or interlocutory, a decision or a sentence”. It has been held that the inclusion of the word “decision” does not permit appeals against any decision or ruling (Rilak (No 2) [2022] FedCFamC1A 100 at [43]–[50]. See also Driclad Pty Ltd v Federal Commissioner of Taxation (1966) 121 CLR 45 at 64). In Commonwealth v Mullane (1961) 106 CLR 166 the High Court dealt with a judgment, decree, order or sentence. The Court said (at 169):It is apparent from the description that I have given of the proceedings that what the County Court did was to rule upon a point of law which was raised in opposition to the appeal. If the County Court had ruled against the employee who appealed to the County Court, the County Court might have dismissed that employee’s appeal and that would have been an order. It might on the other hand have decided not then and there to dismiss his appeal but to hear more about it by way of explanation, or to enable another tribunal to pass judgment on the view which the learned judge adopted. What his Honour did was simply to give a ruling on a point of law which was raised. It did not conclude the rights of the parties before the hearing of the case was completed. The County Court judge might have altered his mind, he might have ruled otherwise, he might have qualified his ruling; there was no determination. It was something done in the course of the hearing. His Honour realized that and adjourned the hearing to a date to be fixed. It did not, in our opinion, amount to a judgment, still less to a decree; it did not amount to an order and certainly not to a sentence. It is outside the terms of s. 73 of the Constitution and this appeal has no foundation in any curial order which is appealable. In Yule v Junek (1978) 139 CLR 1, Mason J with the agreement of Jacobs and Aickin JJ said (at 14):“Decree” was defined by s. 4 (1) so as to mean “decree, judgment or order, and includes a decree nisi and an order dismissing an application or refusing to make a decree or order”. The sub-section, read in the light of the statutory definition, makes it clear that an appeal lies from a judicial order, not from a mere answer to a question of law arising in proceedings, in particular an answer which of itself could not be decisive of the rights of the parties unless and until the primary judge dealt with the other questions upon which he reserved judgment. The consequence is that no appeal lay to the Family Court from the reasons for judgment delivered by Woodward J. and the Full Court of the Family Court had no jurisdiction to exercise until such time as his Honour made an order.

Ratio Decidendi

Legal Principle Established

Section 65DAAA(1) of the Act provides:65DAAA Reconsideration of final parenting orders (1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and (b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered. This section is not directed to the making of final parenting orders, merely whether such orders should be reconsidered. No substantive rights are affected unless and until, upon any such reconsideration, either the same or different final orders are made. A decision under this section is merely a finding or a ruling on the way to such final orders. As such, it could be reversed at any time. The order does not require the parties to do or not to do anything. It neither creates new rights and obligations nor alters existing ones. The order is directed to the Court, but other judges could not be bound by its terms. I do not consider it to be a judgment from which an appeal lies. It would be otherwise if a substantive order had been made, such as an order dismissing the Initiating Application, although leave may be required.THE RESPONDENT’S SUBMISSIONS ON RADECKI The respondent attempted to persuade me that Radecki ought not be followed because the terms of the section were the last step from a line of authority that has consistently downplayed the need for changed circumstances. I do not accept that to be so. Before I explain why I do not accept that submission, it seems necessary, rather surprisingly, to restate the authority of Full Court decisions. Such decisions are binding on trial judges who must follow and apply them. They are also binding on subsequent Full Courts until the High Court rules otherwise or the later Full Court is compelled to the conclusion that the earlier decision is wrong (Nguyen v Nguyen (1990) 169 CLR 245 at 269). In Blair v Curran (1939) 62 CLR 464, the High Court found that such a departure was only justified if the previous decision was plainly erroneous (at 495 and 531). It is therefore not enough to simply persuade a subsequent court that a different view is to be preferred. Radecki must therefore be followed. It would not be appropriate for a single judge sitting as the Full Court to come to the view that the decision is so wrong as not to be followed. I am, however, of the view that it is completely correct. In the seminal case of Rice and Asplund (1979) FLC 90-725, Evatt CJ said (at 78,905–78,906):The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant, that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.