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
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 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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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CaseChat Overview and Summary
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
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.