Lehtinen & Lehtinen (No 4) - [2024] FedCFamC2F 1795

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lehtinen & Lehtinen (No 4)

Details

AGLC: Lehtinen & Lehtinen (No 4) [2024] FedCFamC2F 1795
Case: [2024] FedCFamC2F 1795
Decision Date: 2 December 2024

CaseChat Overview and Summary

This matter involved a review of a registrar’s decision concerning final parenting orders between Ms Lehtinen and Mr Lehtinen. The Federal Circuit and Family Court of Australia, Division 2, was tasked with reconsidering the parenting orders and the case management of the proceedings. The applicant sought a review of the final parenting orders, particularly in relation to the implementation of section 65DAAA of the Family Law Act 1975.

The primary legal issue before the court was whether the registrar appropriately applied the considerations outlined in section 65DAAA in making the final parenting orders. This section requires the court to consider the views of the child and the likely effect of any change in the child’s circumstances on the child, among other things. The court had to determine whether the registrar correctly interpreted and applied the statutory requirements in this context.

Judge Myers found that the registrar had not adequately considered the views of the child as required by section 65DAAA. The court held that the registrar failed to sufficiently address the child's expressed wishes and the potential impact of the parenting arrangements on the child. Consequently, the court ordered that the final parenting orders be reconsidered and the matter be referred back to a registrar for case management and setting down for a final hearing. The court emphasised the importance of properly applying the statutory framework when making decisions affecting children in family law matters.

Orders

Orders of the court

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.

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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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

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