Increased powers delegated to Registrars in the Family Law Courts - Wolters Kluwer CCH
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Family Law

Increased powers delegated to Registrars in the Family Law Courts

By Jacky Campbell, Partner, Forte Family Lawyers

From 26 September 2020 increased powers were delegated to the Registrars and Senior Registrars of the Family Court and Federal Circuit Court. These increased powers seemed to be designed to serve the following three purposes:

  1. Harmonise the rules of both courts in relation to the delegation of powers so that the Registrars and Senior Registrars of each court have the same powers;
  2. Increase the effectiveness of Registrars to conduct hearings by broadening their powers; and
  3. Reduce the workload of the Judges of the two Family Courts;

The amendments are contained within Family Law Amendment (Powers Delegated to Registrars) Rules 2020 and Federal Circuit Amendment (Powers Delegated to Registrars) Rules 2020.

Increased time to seek review

The Rules also change the time limits for review of orders of Registrars so that in most cases there is a longer time period for a review to be sought.

Reviews must be sought within 21 days after the order was made if the order was made under the Family Law Act 1975 (Cth) (FLA) or the Family Law Regulations 1984 whether the matter is in the Family Court or the Federal Circuit Court.

A review in relation to powers delegated under the Family Law Rules 2004 (FLR) must be sought within 21 days after the order is made (r 18.08 FLR) but in the Federal Circuit Court a review of exercise of power delegated under the Federal Circuit Court Rules 1999 (FCCR) must be sought within 7 days (r 20.01(1) FCCR).

Greater powers to Senior Registrars in the Federal Circuit Court

The revised table in r 20.00A of the FCCR must be read very carefully as certain powers are given to “approved Registrars” so that they have the same powers when exercising family law jurisdiction in the Federal Circuit Court as they have in the Family Court. “Approved Registrars” are more commonly known as Senior Registrars. Similar extra powers have not been delegated to Registrars of the Federal Circuit Court although in some cases they have more restricted powers with respect to the same type of order, such as in undefended or consent proceedings only.

The additional powers which Senior Registrars have in the Federal Circuit Court (to match the powers they have in the Family Court) include:

  • to make a parenting order where the order is an order until further order, or made in an undefended case;
  • to make a recovery order;
  • to make a child maintenance order or urgent child maintenance order pending the disposal of the proceedings for a child maintenance order;
  • to order a passport or other travel document to be delivered to the court;
  • to make an order or grant an injunction;
  • to make an order in relation to a parentage testing procedure, issue a declaration of the parentage of a child or make an order requiring a person to give evidence in relation to the parentage of a child or in relation to a report of a parentage testing procedure;
  • to make certain orders to enforce compliance with orders under the Family Law Actaffecting children, only if the order is made until further order, or the power is exercised in an undefended case or with the consent of all parties to the case;
  • to make an order for the maintenance of a party to a marriage;
  • to make a de facto or spousal maintenance order, an urgent or interim de facto or spousal maintenance order, or vary or discharge a de facto or spousal maintenance order;
  • to make a property order or declaration in relation to the property interests of the parties to a marriage or a de facto relationship where the order or declaration is an order or declaration until further order, or made in an undefended case;
  • to make an order allowing a child to swear an affidavit or be called as a witness in, or be present during, proceedings;
  • to give leave for a child to be examined;
  • to make certain orders in relation to imposing sanctions for failure to comply with orders, and other obligations that do not affect children, where the order is an order until further order, or is made in an undefended case, or is made with the consent of all the parties to the case; and
  • to make certain orders in relation to child support under the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth).

Orders with delayed effect

Increased powers have been given to Registrars particularly in undefended applications but many of them are conditional. The orders made do not come into effect until 21 days after service of the order on the other party.

Many of the additional powers given to Registrars in the Federal Circuit Court and the Family Court are given on the basis that they can be made in an undefended case but do not come into effect until at least 21 days after service or they are made be consent. Examples of these are parenting orders under s 65D (except for excluded child orders which are defined in s 26B(1A) FLA); declarations of interests in property, property orders and varying property orders under s 78, 78 & 79A, 90SL, 90SM & 90SN; and discharging, suspending, reviving or varying spousal maintenance orders under s 83(1) and 90SE FLA.

Under the amendments a number of additional powers are delegated to Registrars of the Federal Circuit Court, including:

  • to transfer a proceeding to the Family Court of Australia;
  • to give directions about practice and procedure under the FLA, the FLR and the Family Law Regulations 1984 in relation to a proceeding or part of a proceeding that is within the power of a registrar to hear and determine;
  • to give directions about how testimony is to be given in a proceeding that is within the power of a registrar to hear and determine, including orally or by affidavit, by video link or by audio link;
  • to make orders with respect to family counselling, family dispute resolution and other family services;
  • to grant leave for proceedings to be instituted out of time;
  • to make a parenting order where the order is made in an undefended case and the order is to come into effect at least 21 days after being served on the non-appearing party;
  • to make an urgent or interim de facto or spousal maintenance order, or vary or discharge a de facto or spousal maintenance order, where the order is made in an undefended case and is to come into effect at least 21 days after being served on the non-appearing party;
  • to make a property order or declaration in relation to the property interests of the parties to a marriage or a de facto relationship, where the order or declaration is made in an undefended case and is to come into effect at least 21 days after being served on the non-appearing party;
  • to make consent orders following dispute resolution;
  • to appoint or remove a litigation guardian and add additional parties to a proceeding;
  • to make limited enforcement orders relating to a Third Party Debt Notice, the sequestration of property; the appointment of a receiver, the enforcement of an obligation, or the warrant for arrest, but only in relation to a case within a Registrar’s power; and
  • to make limited orders in relation to child support under the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth) if the order is made in an undefended case or with the consent of all the parties to the case.

In summary, the amendments will enable the family law courts and therefore parties to use Registrars and Senior Registrars more frequently and effectively. More cases are being listed before Registrars and Senior Registrars for first return dates and later hearings. These hearings are likely to be more productive and many matters will be able to progress through the court system without being delayed by the necessity for an adjournment to a date before a judge.