Reviewing a Registrar’s decision is not an easy task.
Delegation of powers to Registrars and Senior Judicial Registrars
Since the commencement of the Federal Circuit and Family Court of Australia Act 2021 (FCFCoA Act) and the Federal Circuit & Family Court Rules 2021 (The Family Law Rules) in September 2021, Judicial Registrars and Senior Judicial Registrars have been delegated the exercise of certain judicial powers under section 98 and section 254 of the FCFCoA Act.
Clause 2 of Schedule 4 of the Family Law Rules (see also Rule 14.03 Family Law Rules) sets out the specific powers that have been delegated to Registrars and Senior Judicial Registrars. These powers are wide ranging and include the power to make consent orders, costs orders, the power to determine divorce applications, and to make procedural orders, for example, that a family report be prepared or for the parties to undertake valuations of entities and orders as to who pays the cost of those valuations. In the case of Senior Judicial Registrars, the powers include the capacity to make interim contested parenting orders, spousal maintenance orders and injunctions.
A concise summary of the powers of Registrars & Senior Judicial Registrars can be accessed here.
Registrars now manage most cases from when an application is filed, until when a matter is ready to be listed for a Hearing. This delegation of powers enables Registrars to undertake tasks that used to undertaken by Judges, so that Judges can focus on Final Hearings and determining complex interim applications.
Reviewing a Registrar’s decision
An exercise of delegated powers to a Registrar is always subject to review of that decision by a Judge. Otherwise, the delegation of powers would be unconstitutional: Harris & Caladine [1991] HCA 9.
This is largely because you cannot appeal from a decision where delegated jurisdiction is being exercised by a Registrar, pursuant to section 98 and section 254 of the FCFCoA Act: Grayden & Grayden [2003] FamCA 359.
A review of the exercise of delegated judicial powers by a Registrar may be done by a party to the proceedings or the Court is at liberty to propose a review of the decision.
A review of a decision of a Division 1 Registrar may be undertaken pursuant to section 100 of the FCFCoA Act whereas a review of a decision of a Division 2 Registrar may be undertaken pursuant to section 256 of the FCFCoA Act.
Pursuant to rule 14.05 of the Family Law Rules and section 100 and section 256 of the FCFCoA Act, a party to proceedings has a right to apply for review of a Senior Judicial Registrar or a Judicial Registrar’s decision within 21 days of the decision sought to be reviewed. A party does not need permission of the Court to apply for review of a Registrar’s decision. When an application for review of a judicial registrar’s decision is filed, the review takes place as an original hearing (not an appeal) and the Court may receive further evidence to that which was before the Registrar when the original decision was made: r 14.07 FLR. This means the Judge rehears the whole matter and does not simply review the decision of the original court. Accordingly, there is no requirement to prove that the Registrar made an error.
The Application once filed, must be listed for Hearing as soon as possible and within 28 days of the date of filing the application. A review of a Registrar’s decision may even be sought if an order was made by consent of the parties.
The Court’s discouragement of applications to review a Registrar’s decision
Given the new wide-ranging powers of Registrars and Senior Judicial Registrars along with the ability of a party to seek a review of Registrar’s decision as of right, it opens the flood gates for parties to seek a review of a Registrar’s decision and a new hearing, whenever a party is unhappy with the decision.
However, Chief Justice Alstergren of the Federal Circuit & Family Court of Australia has cautioned against party’s applying for review of a registrar’s decision without good reason. The Chief Justice released an Update to the Legal Profession in 2021 wherein he discouraged review applications, stating that where filed inappropriately they would be dismissed with costs. The reason being that Registrar’s have been delegated the power to manage the large majority of matters at an interlocutory stage and if their decisions were regularly reviewed, it would be counterproductive to the reason for their engagement.
In Lombardi & Rider, the Chief Justice stated:
“Parties should not be encouraged to regard a hearing in relation to the review of a ’s concerning whether to abridge a matter as an opportunity to agitate their substantive application before a Judge ahead the time that has been allocated by the .
The Court’s Registrars play a significant role in the proper and efficient functioning of the Court. The Court should not interfere in the listing decision of a Registrar unless genuine urgency can be demonstrated.”
In Lawson & Glenning, Judge Riethmuller stated:
“The new Court system of having Registrars undertake interlocutory work should not be treated as an invitation to simply lodge review applications without careful consideration of the need for a review application, and the importance of properly using the Court’s resources. A Registrar’s hearing should not be used as a ‘dry run’ or a ‘practice run’ at a case, but rather the main event, with a review application there in the background, in a similar way to that of an appeal if it were a judge dealing with the matter. If the system is not approached in this manner, then litigants and practitioners can expect costs and other consequential orders, to ensure that the processes of the Court are not misused or wasted.”
Recently at a Family Law Conference, Chief Justice Alstergren stated that only 3% of decisions by Registrars are reviewed and of that 3% only 9% of those review applications are successful.
It appears that applications for review are few and far between and whilst such applications are as of right, given the discretionary nature of decisions made by Registrars and Judges, a Judge may be loathed, except where a decision is plainly wrong to substitute his or her own discretionary reasoning for that of the Judicial Registrar so as to overturn the Judicial Registrar’s decision.
Recent reviews of a Registrar’s decision
Bradshaw & Bradshaw (No. 5 & No. 6) [2024] FedCFamC1F 223
In Bradshaw & Bradshaw, the Father filed an application for review of recovery orders made by the Senior Judicial Registrar whereby the child was returned to the care of the Mother.
The background of the matter was that on 26 May 2023, final orders were made providing for the child X (13 years of age) to live with the Mother and after a period in which there was to be no time between the Father and X, there was to be a reintroduction of time with the Father to increase gradually such that eventually X would spend alternate weekends with the Father and half of each school holiday period.
These orders were consistent with the recommendations of a Court Child Expert and in X’s best interests in order to provide X the opportunity of having a relationship with both parents.
It was common ground that the child X wanted to live with the Father. X had claimed that his mother psychologically abused him. The Trial Judge ultimately found that it was improbable that a meaningful relationship with the mother was achievable if the child remained living with the Father, as the Father’s behaviour was likely to influence the child to reject the Mother. He was deemed an unsuitable primary carer for this reason.
The psychological risks inherent in X transitioning to live with the Mother were balanced against the ongoing and lasting consequences for X’s future social, emotional and psychological development, if he remained living with the Father. The child expert opined that the child was likely to suffer fr0m serious psychological harm if the child remained living with the Father.
Following the making of final orders, the Father alleged risk issues, namely that the child was having self-harm thoughts and was absconding from the other’s house.
The Mother filed an application for recovery. The Father sought that the final orders be overturned and that the child spend time with the Mother in accordance with his wishes.
The Mother’s application for recovery was successful, and the child was returned to the Mother, following which the Father alleged that X was injured whilst running away from the Mother’s house, after the police actioned the recovery order.
The Father sought review of the Senior Judicial Registrar’s decision to issue the recovery order.
It was common ground that the child wanted to live with the Father, that the child alleged the Mother psychologically abused him and that the child X remained at the Mother’s house for 24 hours after the recovery order was made, and then went to live at a third party’s residence, Ms P, a person well known to the Father.
The Mother’s submissions were in line with the previous judgement, that if the child remained with the Father, he would have no relationship with the Mother, and the current situation was one in which the Father had complete control, in that the Father was involved in the child’s removal from the Mother’s care and he had taken no steps to facilitate return of the child to the Mother. The Mother noted there was no evidence from Ms P as to how the child came into her care and her communications with the Father.
The Father’s submissions were that the Mother was responsible for facilitating a ‘successful transition’ of the child to the Mother and the fact that the child ran away, indicated the transition was unsuccessful. He submitted that a precondition to the success of the transition was that the Mother would in a ‘sophisticated and sensitive way’, transition the child to her care, and that she had failed to do so. He placed significant weight on the child’s wishes not to return to the Mother, as stated by the child to DCJ and police, and submitted it was the Mother’s attitude and behaviours towards the child that was causing the child to reject the Mother such that the child wanted to live with the Father. The Father asserted a risk of harm to the child, as noted by the police and DCJ, due to statements made by the child that he might harm himself, to those entities.
Judge Schonel noted the findings of the Trial Judge, namely that if the child remained living with the Father, he would not have a meaningful relationship with the Mother and that the Father’s behaviour was likely to influence the child to reject the Mother. He dismissed the Father’s application for review of the Senior Judicial Registrar’s decision and ordered that the Father facilitate the return of the child to the Mother’s care, and in the absence of same, a recovery order issue. Ms P was joined to the proceedings and she was similarly ordered to facilitate return of the child to the Mother, pursuant to the final orders.
In a separate judgement, the Father was ordered to pay costs in the sum of $6,600 to the Mother.
Gulek & Sidu (No. 1 and No. 2) [2024] FedCam2F 1192
In Gulek & Sidu, the Father filed an application for review of interim orders made by the Senior Judicial Registrar for the children’s time with the Father (X was 4 years of age and Y was 12 months old) to be graduated, culminating in unsupervised time.
Both parties agreed that the interim orders should be varied. The Father sought further unsupervised time with the children which was supported by the ICL. The Mother sought supervised time only.
Both parties deposed the relationship was marred by family violence but asserted the other was the aggressor and that their actions were in self defence. A DVO was put in place in 2024 after separation and due to an incident between the parents, the Father was subsequently charged with common assault and the Mother was charged with assault occasioning bodily harm.
The Mother alleged unacceptable risk. The Father alleged that text messages from the Mother of love and support during the relationship supported his assertions of an absence of risk.
The children had spent no time with the Father following separation until orders were made by the Senior Judicial Registrar on 11 June 2024 commencing with a period of 8 weeks of supervised time and thereafter progressing on a graduated basis to weekly day visits, unsupervised. However, such time was not to commence until the child X had two sessions of family therapy with a therapist agreed to between the parties.
As at the date of the Review Hearing, X had attended the two sessions of family therapy and spent two occasions of supervised time with the Father.
The allegations of family violence by the Mother included physical abuse, psychological abuse, and coercive control.
By way of example, he called her overweight and a ‘spastic’, that she would turn into a whale if she had a baby and that baby would have ADHD, and he attempted to coerce her to have an abortion including requesting his psychologist to tell her to do so. When the psychologist refused, he ignored the Mother for 3 weeks.
There were various incidents of physical abuse alleged by the Mother, including:
- In 2014, he pushed the Mother onto the asphalt nature strip after an argument and when the Mother made it inside he followed her and threw a water bottle at her chest. After this incident he ignored her for a week.
- In 2022, he tried to launch a punch at her on two occasions.
- He would regularly stand over her yelling at her during arguments;
- In early 2024, there was a serious incident of family violence which resulted in the Father being charged with assault and the Mother being charged with assault occasioning actual bodily harm. X was in close proximity at the time.
The Mother further alleged that the Father was financially controlling in that he provided her with insufficient funds to meet the household expenses and questioned purchases from the joint account and insisted on seeing receipts either in paper form or emailed to him. The Father conceded that the Mother had emailed him receipts of her expenditure from 2021/2022 but alleged it was to ‘set up’ a financial abuse claim.
After separation, the Father broke into the matrimonial home where the Mother and children were staying in the early hours of the morning, while the children were sleeping, and changed the electronic pin on the front door. The maternal grandmother observed that the Mother was visibly frightened when realising the Father had been in the house during the middle of the night. As a consequence, the maternal grandmother started sleeping at the house.
The veracity of the allegations of family violence deposed to by the Mother were supported by evidence from the Mother’s treating practitioner between 20148 to 2018, in relation to comments made by her to him during appointments and secondly, he recalled observing physical injuries on the Mother including bruises and lacerations that were consistent with the Mother being a victim of family violence.
When he would ask the Mother the cause of her injuries, she would either evade answering his questions, attempt to provide explanations as to how the injuries were sustained, or she would break down in tears and say words to the effect “please I do not want to talk about it. I don’t want this recorded. I do not want him to get into trouble…”
The Mother also asserted the Father’s physical discipline was excessive. By way of example:
- He would regularly pinch X’s finger causing him to be inconsolable;
- On X’s third toilet training day, when X did not make it to the bathroom on time while toilet training, he would accuse him of doing it on purpose and hurl him on the toilet seat causing him to cry;
- In late 2023, the Father hurled X into the air and dropped him from chest height into a faulty travel cot;
- In early 2024, on a family holiday, he grabbed an object from X’s hands and threw it against the wall, smashing it, and when X cried he leaned over X and screamed at him teling him to stop, as a result of which X yelled at him that he was scared and to stop.
The Maternal grandmother deposed to witnessing similar physical interactions with X at family gatherings.
The Father largely denied all allegations of family violence made by the Mother, alleging that she was the perpetrator.
It was common ground that X was experiencing difficulties regulating his emotions and behaviour as evidenced by a letter from X’s day care about multiple incidents occurring and complaints from parents about X’s behaviour, and multiple families wanting to leave the service, as a consequence of which, X’s day care hours were adjusted to ensure the safety of other children.
The Mother subsequently sought assistance from Ms H for X’s behavioral issues and X subsequently attended upon Dr E who identified X as suffering sensory processing issues.
The day care also cited in a letter that when a day care teacher was explaining to the children why we don’t hit our friends and hands are not for hitting X said “yes that’s right, my dad hit my mum and she called the police.”
The Father did not address X’s behavioural issues in any meaningful manner in his affidavit.
The evidence before the Court in relation to the two supervised visits was that X enjoyed spending time with the Father.
The Mother’s submissions were that the children’s time should be supervised due to the significant family violence perpetrated by the Father upon her and X and/or in proximity to X, such that the children were at an unacceptable risk of physical and psychological harm in the Father’s unsupervised care.
The Father’s submissions, also adopted by the Independent Children’s Lawyer, were that whilst the event in early 2024 must be seen as a risk, there was no evidence to support a position that the children were at an unacceptable risk in the Father’s care. The Father also relied upon the supervision contact reports demonstrating that the children were comfortable with the Father and had a good relationship with him.
Ultimately, Judge Murdoch determined that the physical incident that occurred in early 2024, in or around separation, resulting in criminal charges being laid, was serious and concerning.
He noted that the Mother’s allegations of family violence by the Father during the relationship were particularised and significantly, corroborated by a medical practitioner. He noted the Father’s evidence and submissions were inconsistent in that he deposed at length to the family violence perpetrated by the Mother but simultaneously sought orders that the Mother remain the primary parent.
His Honour was not concerned that the Mother changed her position to seek only supervised time on the day of the review hearing.
Weighing all the above, His Honour determined that despite the good relationship between X and the Father at the contact centre, the Mother’s allegations as to family violence by the Father combined with X’s inability to self-regulate led to the conclusion that it was in the children’s best interests that the time with the Father continue to be supervised.
In a separate judgement, the Father was ordered to pay costs in the sum of $4,926 to the Mother noting the Father achieved a less desirous result at the Review Hearing than before the Senior Judicial Registrar.
Lombardi & Rider [2021] FedCFamC2F 57
In Lombardi & Rider, the Wife’s solicitor sought a review of the Judicial Registrar’s decision to refuse to urgently list a parenting matter in circumstances where the listing date provided was 6 weeks from the date of filing the Initiating Application.
Prior to the application, there was a week about arrangement in place for the children pursuant to a Parenting Plan. The Father made allegations of drug use against the Mother. The Mother came to court with a clean drug test and in her application she alleged domestic violence by the Father.
The Chief Justice held that that the decision with respect to the listing date was a reviewable decision although he noted that the Mother’s application was framed in the most generic of terms seeking orders that “all times and rules be abridged to allow matter to be heard on urgent basis.” He said:
“Other than the request for an order that the “rules be abridged” in the Mother’s Initiating Application, the Mother made no specific request to the Court to abridge the time for service of her Initiating Application pursuant to r 2.13 of the Rules, nor did she seek an abridgement of time for the Father to file his Response to Initiating Application, Notice of Child Abuse, Family Violence or Risk and supporting affidavit, under rr 2.18, 2.04 and 5.04 respectively.
In determining whether to allow the review, the Chief Justice referred to rule 1.04 of the Family Law Rules, which states that the overarching purpose of the rules (see also s67 FCFCoA Act) is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. He said: “Registrars are best placed to allocate listings having regard to urgency considerations and the overall business of the Court.” The Court must consider the facts of the case and the safety risk in comparison to other matters before the Court, as the Court is busy and resources must be allocated efficiently.
His Honour then referred to the case of Myers and set out the factors the court must be satisfied of in order to list a matter urgently:
- The Applicant has demonstrated a reasonable basis for orders sought;
- The Applicant has demonstrated that absent urgent listing the Applicant will be prejudiced regarding the substantive relief sought other than in ways common to other matters awaiting the court’s attention;
- The Applicant has demonstrated that there has been no unreasonable or unexplained delay in approaching court;
- A judicial officer is available to hear the application.
In relation to each of the above elements, His Honour held:
- The Mother demonstrated a reasonable basis for the orders sought by her;
- but he was not satisfied of elements two, three or four.
- After considering the facts of the case and the various safety risks alleged, he was not satisfied that the application demonstrated urgency, or that absent an urgent listing, the Mother would be prejudiced in relation to the substantive relief sought by her other than in ways common to other matter awaiting court attention;
- He was not satisfied that the Mother had demonstrated that there had been no unreasonable or unexplained delay given that the Mother’s application was filed 4 weeks after the last time she spent with the child. It also took her three weeks to file her application for review. His Honour stated the Mother had not conducted herself in a way that suggested the application was urgent. His Honour gave this element significant weight.
- In relation to the availability of a judicial officer to hear the application, His Honour was critical of the Mother’s review application, stating that parties should not file an application for review just because they disagree with the Registrar’s decision, and such application should only be filed in truly urgent circumstances. A review application should not be considered an opportunity to agitate their substantive application before a Judge ahead of the time allocated by the Registrar.
The application for review was dismissed.
Canvin & Jesney [2021] FedCFamC2F 145
Canvin & Jesney involved an application by the Father for review of a Judicial Registrar’s decision not to urgently list a parenting matter in circumstances where the listing date was 4 weeks from the date of filing the Initiating Application.
Deputy Chief Justice McLelland referred to the case of Myers and considered the 4 elements to be satisfied for a matter to be listed urgently.
His Honour agreed that the Father demonstrated a reasonable basis for orders sought and three was no unreasonable/unexplained delay. The main issue for the Court’s determination was whether his application would be prejudiced regarding the substantive relief sought other than in ways common to other matters awaiting the Court’s attention.
His Honour stated that priority must be given to matters involving children at risk of harm. In this case, the Father alleged that the Mother had mental health challenges and that her parenting capacity reduced when she consumed alcohol. However, the concerns he had were not such that he proposed supervised time and instead he sought to implement the week about arrangement previously in place. In such circumstances, His Honour determined that the application was not such that in the Father’s eyes the children were at immediate risk of harm pending consideration of the matter by the Court. He concluded that the listing date was entirely reasonable in the circumstances and could be regarded as being as soon as practicable in the circumstances of the case.
The application was dismissed and orders made for written submissions with respect to the issue of costs.
Lawson & Glenning [2021] FedCFamC2F 118
In Lawson & Glenning, Justice Riethmuller heard an application by the Father for review of parenting orders made by a Judicial Registrar in circumstances where the Father alleged that the children were at risk of harm in the Mother’s care. The Mother also alleged that the children were at risk of harm in the Father’s care. The Registrar made various orders including that the children live with the mother, That an ICL be appointed and the matter was adjourned the matter for one week for the filing of material. The Registrar reserved the decision regarding time with father until after she had more information following the filing of material and appointment of an ICL.
The allegations made by the Father were regarding the Mother’s partner who had criminal charges pending. There were no details of what the charges were. The Registrar made injunctions that the mother’s partner was not to be left alone with the children when in the mother’s care.
When the matter came before Judge Riethmuller for consideration of the Father’s review application, he did not pursue the review.
His Honour was then required to consider an application for costs by the Mother.
He noted the central practice direction as well as the effective use of court resources. The review application was pointless and the orders made by the Registrar were reasonable in the circumstances.
The Father was ordered to pay the Mother’s costs.
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