What to do when you think the Registrar got it wrong:

When you make an application to the Court seeking procedural or interim orders, you may not realise that your application may be determined by a Judicial Registrar.  There are three categories of Judicial Registrars – Deputy Registrars, Judicial Registrars and Senior Judicial Registrars.  Each, depending on their seniority, is able to exercise judicial power which has been delegated to them by Judges of the Federal Circuit and Family Court of Australia (Division 1 and Division 2).  For example –Deputy Registrars can determine applications for urgency, whilst Senior Judicial Registrars can determine interlocutory applications (making interim parenting or financial orders) and summarily dismiss a proceeding.

When a Judge makes final orders and the Court has made an error, parties are able to challenge that decision (or seek to ‘appeal’ the decision).  Similarly, where a Registrar makes a decision and there has been an error, a party is able to file an Application for Review (a ‘review application’).

A review application must be filed within 21 days of the Order being made.  Where possible, the Court lists review applications for hearing within 28 days of filing. The application will be listed before a Judge for a ‘hearing de novo’ (meaning the Judge considers your application with ‘fresh eyes’).

Parties are usually required to rely on one affidavit – which can be an updated affidavit or the affidavit that was before the Registrar – and a written outline of argument.  Parties may also be required to prepare a joint statement of agreed facts and issues in dispute, to assist the Court.

Whilst the prospect of filing a review application may seem appealing, if you are unhappy with an interim decision you should proceed with caution.  The Court published information about the success rate of review applications in 2023 and surprisingly, over 90% of review applications were dismissed.

In Lawson & Glenning [2021] FedCFamC2F 118, Riethmuller J said at [27]:

“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.” (emphasis added)

When contemplating filing a review application, you should be aware that the application itself does not operate as a stay of the order.  For example, if the Order requires you to do something within a certain timeframe, you may need to also file an Application in a Proceeding seeking to suspend the orders pending the outcome of the review hearing (known as a ‘stay application’).

Before you file a review application, you should speak to a family lawyer to obtain advice about the merits of your application and whether a stay application is necessary.  Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Anika Buckley, August 2024

Who you appear before in the FCFCoA and what they can do?

In Australia, the Federal Circuit and Family Court of Australia (FCFCoA) determine family law disputes. There is now a range of judicial officers who have varying degrees of delegated power in which to support your matter through the case management pathway that now exists in the FCFCoA. They include Judges, Judicial Registrars and Deputy Registrars, just to name a few.

While a Judge of the FCFCoA – in either Division 1 or Division 2 – is appointed, the balance of judicial offers, who have lesser delegated powers, are employed with varying qualifications and are called Registrars. There are now three types of Registrars in the FCFCoA: Senior Judicial Registrar, Judicial Registrar and Deputy Registrar. Each type of Registrar may become involved at one time or another in your matter once you file and commence Court proceedings, and while you may not appear consistently in front of one or another, they each have different roles in managing your matter from filing to finalisation. 

The different roles are as follows:

1.    Deputy Registrars (DR):

a.    These officers have a constrained delegated power, to deal with procedural, consent or dispute resolution applications, such as:            

• Consent Orders, either parenting, property or both, are filed with the Court for review and finalisation.

• Divorce Orders, in undefended proceedings (i.e. proceedings that are not disputed because one party does not respond or get involved).

• Dispute Resolution processes are facilitated by the FCFCoA, namely Family Dispute Resolution Conferences (FDRCs).

• Orders by consent are procedural and managerial orders that are intended to support the case through the management pathway.  

2.    Judicial Registrars (JR):

a.    These officers have the powers of the DR, plus some limited further powers, including:

• The ability to make cost Orders and security for costs (i.e. requiring someone to put up funds in advance of deciding the proceedings).

• The ability to make location Orders.

• The ability to make parenting, property, or both style of Orders, in undefended proceedings (i.e. where one party does not respond or get involved) in a limited set of circumstances.

• The ability to make parenting, property, procedural, or a combination of all three Orders, when by agreement of the parties.

• The ability to make, vary, discharge or suspend spousal maintenance orders in a limited set of circumstances. 

• The ability to appoint an Independent Children’s Lawyer.

• The ability to make Orders in relation to Subpoenas.

• The ability to make Orders that direct parties to attend upon a Court Child Expert. 

3.    Senior Judicial Registrars (SJR):

a.    These officers have substantive delegated powers, with the aim for them to run and determine interim matters. In addition to what the DR and JR have, the SJR can:

• Make interim parenting Orders.

• Make interim property Orders.

• Make Orders for maintenance, location and recovery.

• Summarily Dismiss proceedings.

• Make Orders for enforcement of parenting or property Orders.

• Grant injunctions until further Orders or in undefended proceedings.

It is important to understand which Registrar you appear before, as their powers will limit the extent to which they can deal with the issues at hand. For advice tailored to the stage and type of family law proceedings you may find yourself in, contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.