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
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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