Lehtinen & Lehtinen (No 4)
[2024] FedCFamC2F 1795
•2 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lehtinen & Lehtinen (No 4) [2024] FedCFamC2F 1795
File number(s): BRC 18389 of 2020 Judgment of: JUDGE MYERS Date of judgment: 2 December 2024 Catchwords: FAMILY LAW - review of registrar’s decision – consideration of s 65DAAA. Legislation: Family Law Act 1975 (Cth) ss 60CC, 65DAAA
Second Reading Speech, Family Law Amendment Bill 2023 (Cth), Attorney-General, 29 March 2023.
Cases cited: Radecki & Radecki [2024] FedCFamC2F 811;
Rasheem & Rasheem [2024] FedCFamC1F 595;
Lehtinen & Lehtinen (No 2) [2023] FedCFamC2F 812;
Whitehill & Talaska [2024] FedCFamC2F 768.
Division: Division 2 Family Law Number of paragraphs: 35 Date of last submission/s: 7 November 2024 Date of hearing: 23 September 2024 and 7 November 2024 Counsel for the Applicant: Ms Meyers-Nicolas Solicitor for the Applicant: Feeney Family Law Counsel for the Respondent: Mr Tonge Solicitor for the Respondent: Hopgood Ganim Lawyers ORDERS
BRC 18389 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LEHTINEN
Applicant
AND: MR LEHTINEN
Respondent
ORDER MADE BY:
JUDGE MYERS
DATE OF ORDER:
2 DECEMBER 2024
THE COURT ORDERS THAT:
1.The Court reconsider the final parenting orders numbered 34 and 35 made on 20 October 2023.
2.The matter be referred to a Registrar of this Court as soon as is possible for the purposes of case management and the setting down of the matter for Final Hearing.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
ORAL REASONS FOR JUDGMENT
JUDGE MYERS:
This is the matter of Lehtinen. This is a decision in an Application for Review of the Registrar's decision made on 21 June 2024, where the Registrar refused the mother's application to reconsider final orders made by Judge Willis on 20 October 2023 that provided for the parties' daughter, X, born in 2018, to attend at B School for kindergarten, preparatory, primary and secondary school, that in New South Wales, would be termed infants, primary and high schooling.
The mother seeks final orders as contained in her Amended Initiating Application filed on 6 November 2024 that provides for paragraphs 34 and 35 of the orders made on 20 October 2023 be set aside and that commencing in Term 1, 2025, X attend at C School, Suburb D, with tuition fees paid at the mother's cost and then, the E School, Suburb D for her secondary school, with the tuition fees paid at the mother's costs. The father opposes the mother's application to change schools and asks that the Court dismiss the mother's application for a reconsideration of the final parenting orders made on 20 October 2023.
To be clear, this decision is made only in respect of considering the mother's application to reconsider the final parenting orders that the Registrar refused on 21 June 2024, and will not discuss or determine the mother's substantive application for changing schools, beyond considering the likelihood that if the final parenting order is reconsidered, the Court will make a new parenting order that affects the final parenting order in a significant way or the Court's consideration of any potential benefits or detriments to the child that might result from reconsidering the final parenting orders.
In short, the mother has commenced these proceedings seeking the Court reconsider orders 34 and 35 of the orders made on 20 October 2023 with respect to X's schooling, where the mother suggests that the distance between where X lives when spending time with her mother in Suburb F, is, for a variety of reasons, too far and too difficult for the B School, such that X's school ought to be changed.
The hearing before Her Honour Judge Willis, was conducted on 22 and 24 August 2022 and 30 September 2022. In January 2023, while Her Honour's decision was reserved, the father filed an application seeking to reopen the case to adduce further evidence that the mother had moved her residence to G Street, Suburb F, and that the child had been enrolled in a new kindergarten without his consent. The father also sought that the mother be restrained from changing or terminating X's kindergarten, primary school and secondary school enrolments at B School without his written consent.
On the 7 February 2023, the father amended his application to include the following additional orders:
(5) Within 7 days of the date of this Order, the mother return [X] to reside at her habitual residence of [H Street], [Suburb J] in the State of Queensland, and not thereafter take [X] to reside away from that habitual residence, pending final order.
The father's application to reopen the case came before Judge Willis on 28 April 2023, at which time Her Honour, by consent, dismissed the application with no order as to costs. Prior to the making of final orders, there was the following exchange between Judge Willis, Counsel of the parties and the Independent Children's Lawyer found in the transcript dated 28 April 2023, at page 2, line 36 and page 4, line 34, and it records Mr K as follows:
Potentially rather complicated, but I hope in very short compass I can give your Honour some comfort as to an easy way forward. And the genesis of the application was the mother's relocation away from where she was living in circumstances where the father had - as your Honour will recall from the evidence of the ICLs proposal – requirement or proposal was that the father live within a certain radius of the child's school of [B School], and the evidence was the father said he was going to move there, and the father subsequently has moved to within that radius.
While clearly the mother was presented, at this time, with the opportunity to adduce further evidence in relation to a change of residence, the mother decided not to adduce such evidence about the implications this move might have had on X and the mother in getting X to and from the B School.
It is worth noting that order 34 of the orders made on 20 October 2023, with respect to X's kindergarten, preparatory and primary schooling, was recorded as having been made by consent, whereas order 35, with respect to secondary schooling, was not. In Her Honour's reasons for judgment in Lehtinen & Lehtinen (No 2) [2023] FedCFamC2F 812, Judge Willis stated, at paragraph 309:
I am also aware that the mother and father have each agreed to the long-term decision about current kindergarten and future schooling for [X] and essentially inherent in that decision is an understanding as to the general area where she will need to be living for this to occur.
It was submitted on behalf of the mother in the written submissions contained in her Case Outline filed 23 May 2024 for the hearing before Senior Judicial Registrar Spink at paragraph 15 that:
With respect to the trial judge, her Honour erroneously recorded the order for primary schooling by consent. Neither party consented to such an order at trial. At trial both gave evidence that it was agreed the child would go to the school. A plain reading of her Honour's reasons suggests the parties' agreement - as at the date of trial - was the sole basis for the order for schooling. The public policy factor against substituting a decision of one judge with that of another is arguably inapplicable.
The Court notes that the orders made by Judge Willis were not appealed. In this decision, it is not a matter for the Court to determine the correctness or otherwise of the recording of order 34 by consent.
Section 65DAAA provides that:
(1)If a final parenting order is enforced 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.
(2)For the purposes of determining whether the Court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the Court may have regard to any matters that the Court considers relevant, including the following:
(a)The reasons for the final parenting order and the material on which it was based;
(b)Whether there is any material available that was not available to the Court that made the final parenting order;
(c)The likelihood that, if the final parenting order is reconsidered, the Court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d)Any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
The review in this matter came about in part where the Registrar set out, at paragraph 75 of their decision:
Section 65DAAA requires as a first step that I consider whether there has been a significant change of circumstances since the final parenting orders were made. In my view if I am not satisfied that there has been a significant change of circumstances, I am not required to make any further determination in relation to the requirements of section 65DAAA.
Just to be clear, that is quoting from the Registrar's decision.
While the Court understands the Registrar's view, particularly in light of the comments made during the Second Reading Speech of the Family Law Amendment Bill 2023, taken from the Hansard, dated 29 March 2023, at page 2570, in respect of section 65DAAA, where the Attorney-General set out:
The bill removes the presumption of equal shared parental responsibility and the associated provision that requires a court to consider certain time arrangements for children to spend with each parent.
It also codifies existing case law about the reconsideration of parenting orders, making it clear that it must be in the best interests of the child, and a significant change in circumstances must have occurred, for an existing parenting order to be reconsidered.
The construction of section 65DAAA does not, in the view of the Court, provide for a two-step process when determining whether the Court should reconsider a final parenting order.
In Radecki & Radecki [2024] FedCFamC2F 811, at [9], Judge Neville noted:
…There is no requirement the Court make a positive finding of a significant change in circumstances. The only requirement upon the Court is to consider whether there has been such a change.
While in Whitehill & Talaska [2024] FedCFamC2F 768, at [12], Judge O’Shannessy set out:
… But on its face, section 65DAAA does not require a change in circumstances or provide that there must be a prima facie change of circumstances, rather, whether there is or is not a change of circumstances must be "considered" and all the circumstances must be taken into account, including section 60CC and whether there has been a change of circumstances. This is, on the face of the new section, a difference of substance not merely of emphasis when compared to the orthodox recitation of the Rules.
Altobelli J in Rasheem & Rasheem [2024] FedCFamC1F 595, at paragraph 68, agreed with the position adopted in Whitehill & Talaska setting out:
The Court accepts Judge O'Shannessy's proposition that, whilst it is mandatory to consider whether there has been a significant change of circumstances, such a change of circumstances is not a prerequisite to allow a reconsideration of a final parenting order under section 65DAAA of the Act. Other factors enunciated in section 65DAAA(2)(a)-(d) can inform the discharge of the statutory duty, especially if their evidentiary value outweighs the mere fact that significant change has not occurred.
It was open to the legislature to construct section 65DAAA in such a way that they considered appropriate. Section 65DAAA(1) could have been drafted:
(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 found that there has been a significant change of circumstances since the final parenting order was made; and
(b)the Court is satisfied within all the circumstances, it is in the best interest of the child, the parenting order be reconsidered.
Of course this is not how section 65DAAA(1) was drafted, and as such, the Court agrees with the views expressed in the decisions of Radecki, Whitehill and Rasheem set out above.
Noting the history and timeframes of the substantive litigation that led to the final parenting orders made on 20 October 2023, the Court finds that the issue of the mother residing in Suburb F and X attending at B School was live at the time the father sought to reopen the case that came before the Court on 28 April 2023.
Accordingly, there has been no significant change of circumstances since the final parenting orders were made in the proceedings on 20 October 2023. The Court, having considered whether there has been a significant change of circumstances since the final parenting order was made, now turns to whether 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.
The Court firstly considers those factors found at section 60CC. For the purposes of best understanding the Court's determination, it is important to note that pursuant to the final parenting orders made on 20 October 2023, the orders numbered 5(a) to (g) provide for a quick graduation of time between X and the father, starting with one night a fortnight for a month, two nights a fortnight for two months, three nights a fortnight for two months, four nights a fortnight for two months, five nights a fortnight for three months, then six nights a fortnight for two months, ultimately ending in an arrangement of equal time in seven-night blocks between the parties to occur every Friday at the conclusion of school or 3:00pm on a non-school day.
It is agreed that the equal time arrangement is now due to commence. What this means is that the trip between the mother's home and X's school at B School will occur at a frequency of five mornings and five afternoons in a fortnight. It is, in the view of the Court, not an inconsequential amount of travel. The mother's application is not one where she will seek to reconsider the time arrangements of X spending time with the parties on an equal time basis. The mother simply asks that she be entitled to have the Court reconsider the orders that provide for X to attend B School.
The Court considers the question of what arrangements would promote the safety of X and the parents. To be clear, the reconsideration of which school X should attend will not see X or the parents subjected to or exposed to family violence, abuse, neglect or other harm as a result of the parties further engaging in the court litigation processes that is limited to a reconsideration of school.
That is, X will not be forced to go through a Family Report interview process that would place loyalty demands on her where, for example, a Court Child Expert was trying to obtain her views around whether she wants to live with the mother or the father. There may also be some benefit in respect of reducing harm by reconsidering the school X attends where the mother suggests a trip between her and X's school is long, difficult and causes X car sickness. To be clear, the Court makes no findings about the mother's reasoning for a change of school and simply notes the Court would undertake a consideration of the issues put forward by the mother to go to the question of harm and safety from the same.
X may have strong views about her current school or future school. The Court process of obtaining her views would not, in the view of the Court, be harmful. There is nothing in the determination of the mother's application that raises developmental, psychological, emotional or cultural issues.
Whilst the mother suggests her capacity to ensure X is delivered to her current school has been stretched, the issue of capacity is not relevant to this decision.
This decision does not relate to the benefit of X having a meaningful relationship with her parents.
This application is not one where family violence is a relevant factor and as far as the Court is aware, X is not an Aboriginal or Torres Strait Islander child.
The Court has considered the reasons for the final parenting order and suggests the determination of such school was not one that was hard fought or significantly contested. It was an important order, but not one that having regard to the balance of the final orders was a key decision, particularly where order 34 was wrong or rightly referred to as having been made by consent.
There is now material available to the Court that was not available to the Court at the time Judge Willis made her final parenting orders. That evidence is in the form of expert evidence relating to the actual road trip between the mother's home and B School and further, the evidence of the mother in relation to her lived experience over an extended period.
There are some reasonable prospects that the Court will make orders for a different school to which X currently attends, that if made, would set aside orders 34 and 35 of the final parenting orders made by Judge Willis on 20 October 2023.
The potential benefit of a reconsideration of the issue of schooling might see X attend a school that could be close to halfway between where the parents live particularly noting the Court is not bound to make orders sought by the mother or the father, where the Court finds a different outcome is in X's best interests and the Court had afforded the parties' procedural fairness around its contemplation of orders different to those sought by the parties. The detriment is, of course, that X will likely find herself re-interviewed by a family consultant and be, for a period, uncertain as to what school she might attend in the future. The Court is of the view that given the many years X will remain at school, the potential benefit outweighs any potential detriment.
Having regard to those matters found at section 60CC and having considered those matters at section 65DAAA, also having taken into account that there is no significant change in the circumstances, the Court is satisfied that in all the circumstances, it is in the best interests of X for the final parenting orders made on 20 October 2023, numbered 34 and 35, to be reconsidered.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Myers. Associate:
Dated: 20 December 2024
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