Lehtinen & Lehtinen [2025] FedCFamC1A 69 (17 April 2025)

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

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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lehtinen & Lehtinen has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 20 October 2023 final parentings orders were made in relation to the parties' child who was born in 2018. Orders 34 and 35 required the child to attend a particular school.
2. On 12 February 2024 the respondent filed an Initiating Application seeking to vary Orders 34 and 35 on the ground that she and the child had moved to live about a one hour drive from the named school.
3. A registrar dismissed the proceedings on 21 June 2024. On review, on 2 December 2024, a judge of the Federal Circuit and Family Court of Australia (Division 2) made the following orders:
   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.
4. The primary judge found that there were no changed circumstances but that s 65DAAA of the Family Law Act 1975 (Cth) ("the Act"), properly construed, did not require a change in circumstances for final parenting orders to be reconsidered. The subsequent decision in Radecki & Radecki [2024] FedCFamC1A 246 ("Radecki") clearly found that such a construction was erroneous. Thus the appellant submitted that the primary judge erred in the application of principle and the appeal should be allowed.
5. For her part, the respondent contended that Radecki ought not be followed. She submitted that there had been a softening in the approach to reconsidering final parenting orders over time reducing the emphasis on changed circumstances, which continued into s 65DAAA, such that the section does not require them and merely calls for a consideration of whether circumstances have changed or not, the outcome being the same either way. Further, she sought to rely on further evidence of events which have occurred since the hearing before the primary judge, which, she submitted, clearly identify a change in circumstances.
6. There is, however, a preliminary issue to be resolved. It is whether the orders constitute a decree against which an appeal may be taken.

1. 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 [1968] HCA 91; (1966) 121 CLR 45 at 64).
2. In Commonwealth v Mullane [1961] HCA 28; (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.

1. In Yule v Junek [1978] HCA 4; (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.

1. Interlocutory orders and findings may be appealed against as a part of an appeal against final orders where an error in them is material to the outcome (Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478).
2. 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.

1. 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.
2. 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.
3. I do not consider it to be a judgment from which an appeal lies.
4. It would be otherwise if a substantive order had been made, such as an order dismissing the Initiating Application, although leave may be required.

1. 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.
2. 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] HCA 23; (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).
3. 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.
4. I am, however, of the view that it is completely correct.
5. 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.

1. It is important to note the words "some changed circumstance which will justify".
2. It is true that subsequent Full Courts have referred to the need for "substantial change" (Bennett and Bennett [1990] FamCA 148; (1991) FLC 92-191; D and Y [1995] FamCA 146; (1995) FLC 92-581) or "significant change" (Bolitho and Cohen [2005] FamCA 458; (2005) FLC 93-224).
3. Later courts have referred to "sufficient change" (Miller & Harrington [2008] FamCAFC 150; (2008) FLC 93-383; Marsden v Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1; Carriel & Lendrum [2015] FamCAFC 43; (2015) FLC 93-640).
4. The precise choice of adjective (some, substantial, significant, sufficient) is immaterial and apt to lead to error where semantic choices control the outcome. Such a search also focuses only on one aspect of the test. The question is whether the change in circumstances is enough to justify a new hearing. The adjectives simply serve to highlight the nature of the change to ensure that new litigation does not arise from trivial or nominal change.
5. As Warnick J said in SPS and PLS (2008) FLC 93-363, "The essential question however is as to the sufficiency of new events to provoke a new enquiry" (at [84]). In substance that is no different to what was said by Evatt CJ.
6. Properly analysed, therefore, although adjectives have changed, the principle has not.
7. This principle has been fundamental since at least 1979. Its heart is the best interests of the children, who are not well served by continuous litigation over them.
8. It follows that any reversal of this principle by the legislature, so that a change in circumstance is no longer a prerequisite to reconsidering final orders, must be clear. On the contrary, properly understood the section simply puts the principle into the legislation.
9. In Sciacchitano & Zhukov [2024] FedCFamC1A 224, I said:
   1. As the first decision expressly notes (at [59]), the clear express legislative intent for s 65DAAA was to codify the law as stated in Rice and Asplund (1979) FLC 90-725 which requires that there be such a change in circumstances as to warrant reconsideration of parenting orders.
   2. This intention is clearly given effect by reading "consider" in s 65DAAA(1)(a) in its meaning of "to regard as or deem to be", the second definition in the list of definitions of the word in the Macquarie Dictionary. Thus, the court must find a change in circumstances.
   3. Such an approach, namely to look to the context of the words in the section itself, the Act as a whole and the evident purpose of the section rather than focus on the literal meaning of a word is the modern method of statutory construction (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355).
   4. Further, if s 65DAAA did not require a finding that there had been a change of circumstances it would be otiose and the whole section pointless.
   5. Also, it is not to the point that in a different section of the Act, in an entirely different context, the word "consider" means something else.
10. In Radecki the Court said:
    1. Relying on permissible extrinsic evidence, or "legitimate aids to construction", in this case, the Explanatory Memorandum, including cited authorities and the wording of the Second Reading Speech, the context and purpose of the new statute was to codify the rule in Rice and Asplund and existing case law. It was not to ameliorate or modify the rule, by removing the requirement to make a factual finding about a significant change in circumstances in the application of the first stage. In that context, it is a misconception to apply the text of s 65DAAA so literally to only require a court to embark upon a consideration of whether or not there has been a change of circumstances, but without imposing an obligation to make a positive finding about that pivotal issue.
    2. The decisive factor in rejecting the literal interpretation of "consider" is because to do so results in an operation of s 65DAAA which, adopting the terminology of relevant authorities, is absurd, irrational, and capricious, contrary to Parliamentary intention and may result in unintended undesirable consequences, as observed above. In other words, s 65DAAA would not rectify the mischief, being unfettered applications to revisit parenting orders, to which it is directed.
    3. We therefore conclude, for the purposes of s 65DAAA(1) of the Act, and having regard to the principles espoused in Rice and Asplund and subsequent authority, the proper interpretation of "consider" should not be a literal one. The word "consider" in s 65DAAA should be construed to mean the Court is required to contemplate the evidence and to make findings of fact as to what changes in circumstances (if any) there have been since the making of the anterior parenting orders. If there is no positive finding of changed circumstances, that is the end of the matter. If there is a positive finding as to changed circumstances, the second stage of the process requires the Court to make its determination, subject to the overarching best interests principle, as prescribed by s 65DAAA(1)(b) and otherwise having regard to relevant s 60CC considerations and the matters referred to in s 65DAAA(2).

1. It is well established that the discretion in parenting cases is so wide that two different judges could reasonably make opposite orders on the same facts. If there was no limit to reconsidering final orders, litigants with deep pockets or relentless intent could choose to roll the dice again for no reason other than that a different judge might come to a different result. That could not be in the best interests of the children.
2. However, it must be accepted that the primary judge wrongly construed s 65DAAA in light of the decision in Radecki. Whilst the further evidence is, at least in part, controversial, that is of less significance on a threshold application to reopen final orders where it is to be taken at its highest. Doing so, it demonstrates that since the orders of the primary judge were made, events have occurred such as the birth of the parties' other children, fire damage to a house, lost rental income and increased difficulty in complying with the orders.
3. If the appeal had been competent, I would have allowed the further evidence on a re-exercise of the discretion to find at the date of the hearing of the appeal, which is the relevant date, that there was some (sufficient, substantial, significant) evidence of change to justify a reconsideration of the orders as to the child's school.
4. However, the appeal will be dismissed as it is not competent. Accordingly, the Application in an Appeal to adduce further evidence does not require consideration and will also be dismissed.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge.