Application for review of a Registrar’s decision: The cooling off period inherent in an Application for Consent Orders
By Charles Letts, Senior Associate, and David Marcolin, Associate
As many practitioners in family law would be aware, the family law legislation provides that decisions made by Registrars of the Federal Circuit and Family Court of Australia can be reviewed by a Judge upon the application of one or both of the parties within a specified time limit.
A decision of a Registrar will be either an “administrative” or a “judicial” decision. The type of decision is critical to the nature of the review process.[1] This article focuses only on judicial decisions.
The review by a Judge of a judicial decision made by a Registrar is conducted as an original hearing[2], also described as a hearing de novo, which importantly is very different from an appeal.
Most family law practitioners would understand that the vast majority of Orders made following an Application for Consent Orders being filed are being made by Registrars of the Court.
The implications of this, however, especially when considering the recent Full Court decision of Mirren[3], do not seem to be widely discussed or taken into consideration in general practice.
In Mirren, the Full Court conducted an analysis of the operation of the legislation relating to a review of a Registrar’s decision in circumstances where Orders were made by consent.
Ultimately, the Court held that in circumstances where an Order has been made by a Registrar with the consent of the parties, should one or both of the parties file an application for review of that decision and in doing so withdraw their consent to the initial consent Orders, then as the review by a Judge of the Registrar’s decision proceeds by way of a hearing de novo the only possible outcome is that the initial consent Order cannot be made due to a lack of consent.
The Court’s approach in Mirren and the current legislation creates a situation whereby any Order made by consent by a Registrar effectively contains an inherent “cooling off” period that lasts until the time limit for the filing of a review of a Registrar’s decision passes. That time limit is currently 21 days[4] from when the order or decision is made.
It would appear that as the law stands currently, parties to any Order made by a Registrar following an Application for Consent Orders being filed (or in any other circumstances where a Registrar is making the Orders on a consent basis) can effectively have that Order set aside by, within the prescribed time limit, filing an application for review of a Registrar’s decision and including that they withdraw their consent to those Orders being made in their affidavit evidence in support of such application.
Consent Orders made by a Judge, of course, do not have such an inherent “cooling off” period.
This has significant implications for Orders made following an Application for Consent Orders being filed given that the vast majority of such Applications for Consent Orders are dealt with by Registrars, and a significant proportion of consent agreements reached through dispute resolution outside of the Court process are formalised through the filing of an Application for Consent Orders. Agreements reached after a court-based dispute resolution process also generally result in Consent Orders made by Registrars.
Significant issues could arise in such circumstances where consent Orders require parties to take steps prior to the time limit for an application for a review of the Registrar’s decision elapsing, given that doing so potentially leaves a party open to acting in accordance with the initial consent Order and later being disadvantaged as a result of an application for review being filed and being left in a position where no Order later exists.
As such, we would recommend that all practitioners advise their clients prior to them entering into any Consent Orders of the risks that may arise as a result of the review process.
It may also be prudent to, whenever possible, draft Orders such that the parties are only required to implement the requirements of the Orders following the review time period elapsing. This would ensure, as much as possible, that parties to the Orders are protected against the other party either entering into the consent Orders in bad faith or resiling from their agreed position following either party taking steps to comply with the Orders made by a Registrar.
Should an Order need to be made that requires the parties to take steps prior to the elapsing of the review period, consideration should be given as to how to best protect against that review period causing issues. Options that come to mind potentially include filing the Application for Consent Orders in a state Court (where the decision as to whether to make the Orders or not is generally made by a judicial officer rather than a Registrar and therefore not subject to the same review time periods), the use of a Financial Agreement (which of course brings its own complexities and difficulties to the table) or potentially filing an Initiating Application in the Federal Circuit and Family Court of Australia and thereafter seeking to have Orders by consent made in chambers by a Judge. The same request could accompany an Application for Consent Orders.[5]
Of course, this issue is unlikely to be a problem (or can be appropriately worked around) in the vast majority of matters, however, it is important to keep these issues in mind in relevant cases.
It also appears that, with the court’s move towards a more Registrar-based case management program, many Consent Orders that would previously have been made by a Judge are now likely to be made by a Registrar (such as, for example, when parties settle at or before the first return date), potentially increasing the scope for this review period to be an issue.
It should also be noted that the Court has the power to extend the time limit for a review of a Registrars decision. That process is beyond the scope of this article, but our firm was recently successful in obtaining, on behalf of our client, such an extension following the making of Consent Orders.
Following the Full Court’s approach in Mirren, therefore, the Court, upon granting the extension of time and allowing the application for review of a Registrars decision, had no option but to decide not to make the initial Consent Orders given our client had withdrawn their consent to those Orders.
Whilst this application was made in unusual circumstances where we consider that it would have potentially also have been possible for our client to succeed in having the Orders overturned by way of an application pursuant to section 79A of the Family Law Act, it would appear to be important to advise clients of the potential for such an application for review to be made outside the time limit, especially if the proposed consent Orders could be seen to perpetuate an injustice.[6]
Charles Letts, Senior Associate, and David Marcolin, Associate.
For further information about this issue, or family law matters generally, please do not hesitate to contact us here at Feeney Family Law.
Feeney Family Law
[1] See Valack & Valack [2020] FCCA 1354 and Valack & Valack (No.2) FCCA [2020] for an example of the consequences of conflation of the two types of decisions.
[2] r14.07(1) Federal Circuit and Family Court of Australia (Family Law) Rules 2021
[3] Mirren & Mirren [2020] FamCAFC 94
[4] r14.05(1), r14.05(2) Federal Circuit and Family Court of Australia (Family Law) Rules 2021
[5] r10.07(4) Federal Circuit and Family Court of Australia (Family Law) Rules 2021
[6] In Mirren, for example, the Family Court granted an application for an extension of time in which to file the review application brought some six years after the orders were made. That decision was undisturbed on appeal.