By Bianca Rashed, Senior Associate

The Federal Circuit and Family Court of Australia (the Court) has a number of different judicial officers empowered to make Orders depending on the class of the judicial officer.

Schedule 4 of the Federal Circuit and Family Court (Family Law) Rules 2021 (“the Family Law Rules”) sets out the powers delegated to Senior Judicial Registrars and Judicial Registrars. These powers range from determining divorce applications to making procedural orders and, in the case of Senior Judicial Registrars, determining applications for interim parenting orders,  orders for spousal maintenance, and granting injunctions.

In accordance with Part 14.3 of the Family Law Rules, a party to the proceedings may within 21 days of a decision, make an application to the Court seeking a review of Orders made by a Senior Judicial Registrar or Judicial Registrar. A party does not require the permission of the Court to file an application for review. An Application for Review must be listed for hearing as soon as possible and within 28 days of the date of filing unless it is not practical to do so.

The significant and broad powers delegated to Senior Judicial Registrars and Judicial Registrars, paired with the substantial number of appointments to the Federal Circuit and Family Court of Australia post the September 2021 changes to the Court, opens the gate for parties to seek a new hearing in circumstances an adverse decision is made to their case. However, this raises the questions, should an application for review be filed simply because a party has the right to do so? Recent decisions of the Court place caution on parties’ exercising such rights.

In the matter of Lombardi & Rider [2021] FedCFamC2F 57, a matter regarding a review of a Registrar’s decision not to allocate an urgent hearing date, Chief Justice Alstergren cautioned that parties in proceedings should not be encouraged to treat a review application as an opportunity to agitate their substantive proceedings. His Honour took the opportunity to emphasise the integrity of the decision-making powers of Registrars and the overarching purpose of the Court to facilitate the just, timely and efficient conduct of proceedings.

In Lawson & Glenning [2021] FedCFamC2F 118, Justice Riethmuller (as His Honour is now) referred to the overarching purpose of the Family Law Act 1975 (Cth) and the Central Practice Direction which sets out the core principles of family law cases. At paragraph 27, his Honour served caution to litigants and practitioners to consider the merit of a review application noting:

“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”.

Similarly in Eccleston & Eccleston [2021] FedCFamC2F 162, Chief Justice Alstergren found that the Court should not encourage litigants to be vague in their applications (in this case, regarding an application for an urgent hearing) but to articulate with particularity the orders being sought with reference to the Family Law Rules so that the exercise of the powers of the Registrar can be identified. His Honour also cautioned litigants and practitioners that review applications should only be lodged where there is appropriate urgency and in the event the Court event is “misused”, there will be cost consequences.

It is evident from the case law that the Court expects litigants and practitioners to ensure that review applications are properly considered and brought with merit. An application for review should be properly supported by case law and the Family Law Rules, brought in consideration of the overarching purpose of the Family Law Act 1975 (Cth) and in good use of the Court’s resources.

At Mills Oakley, we have a team of Family Law Accredited Specialists who can assist and provide advice on Applications to Review a Registrar’s decision. It is important that you obtain advice prior to filing an Application to try and avoid cost implications if you are unsuccessful with your Application.