An Application for Review is made to seek the review of an exercise of judicial powers by a Registrar. Such an application must be made within 21 days of the original decision. The filing of an Application for Review does not operate as a stay of the original order or decision, therefore it is most likely that an Application in a Proceeding, seeking a stay of the orders to be reviewed will need to be filed at the same time.
The Review will proceed as a hearing de novo, this makes it tempting for dissatisfied parties to make an Application for Review, however the statistics are sobering. In financial year 2023-24, only 2.5% of all final order applications and interim applications finalised by Registrars were reviewed, and of those, only 1 in 10 were upheld or partially upheld. The Judge hearing the Application for Review may order costs against parties or practitioners in circumstances where the Judge determines that the Application for Review is frivolous or without merit, or where there has been non-compliance with the Rules of the Court. Given those seemingly bleak statistics, and the prospect of costs being awarded, you (or rather your lawyer) must be confident that filing an Application for Review is appropriate and merited. This will be a decision made based on the experience, learning and judgement of your lawyer, and perhaps also of your barrister, if counsel is retained to evaluate and advise as to the prospects of the application. Indeed, deciding to file an Application for Review is not a decision which should be taken lightly.
Jano Family Law recently had reason to urgently file an Application for Review in a large asset pool, high net worth, property matter before the Federal Circuit and Family Court of Australia. The matter concerned a decision made by a Senior Judicial Registrar at an interim defended hearing, which imposed certain orders upon our client, orders which we strongly felt were made on an incorrect legal basis and were not just and equitable. We advised our client to permit us to file an Application for Review and a concurrent Application in a Proceeding seeking a stay of the orders to be reviewed. Each application was accompanied by an affidavit supported by appropriate annexures. Prior to the hearing of each application, we drafted compelling but succinct submissions in the form of Case Outline and we also set out with precision the exact orders being sought by us in the form of a Minute of Orders. The stay application was heard first and the most troublesome orders (from our client’s perspective) were stayed pending the hearing of the Review Application itself. This allowed our client some much needed breathing space while waiting for the main event. It is always our advice to clients, to permit us to brief the best counsel (barrister) which they can afford, and who is willing to accept the brief. It is important to understand that good family lawyers (solicitors and barristers both) are usually rather busy. If you wish to retain the best counsel, you need not only be able to afford it, but your solicitor themselves must have a good reputation as no barrister worth their salt will suffer being briefed by a disorganised, or worse, incompetent solicitor.
In due course, our Application for Review was heard by a well-respected Judge of the Court, who upon the conclusion of the hearing, delivered judgement ex tempore, with the written judgement issuing a few days later. Our client’s Application for Review was upheld, or technically, it was partially upheld, however it was a total success for our client as the troublesome orders were overturned. Interestingly, His Honour commented in the judgement that the orders which we objected to were indeed inelegant, improperly made, and without legal foundation. Our decision to seek a review of the Senior Judicial Registrar’s decision was wholly vindicated. It is important to note that in seeking a review of a decision made by a Judicial Registrar, or Senior Judicial Registrar, no disrespect is intended or implied, it is simply the case that our court officers are extremely busy and must daily decide very difficult issues, in the face of competing submissions by skilled lawyers, and under the burden of a heavy load of documents in these challenging circumstances, they usually get it right, but there are times, when the decision made is not the correct one, and this is why mechanisms such as reviews and appeals exist, and our justice system is made stronger for it.
The anonymised judgement will be published soon, and as soon as it is available, we will provide a link to the published decision here.
If you need help with your Application for Review, please get in touch using this link: New Client Form
On an unrelated note, it is our experience that many of the large family law firms operate on the basis that sheer quantity of filed material will prevail. They draft affidavits which run to the hundreds of pages and submit tender bundles containing literally thousands of pages of documents. The financial cost to their clients of this style of lawyering is immense and these lawyers have no pity for the judicial officer who has to try and read everything. At Jano Family Law we prefer to to take the view that the quality of the work is more important than the sheer quantity of it. Our results speak to the effectiveness of this approach.
Resources and Further Reading:
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (FAMILY LAW) RULES 2021 (F2021L01197) – RULE 14.05
https://www.fcfcoa.gov.au/fl/forms/app-review
https://www.fcfcoa.gov.au/news-and-media-centre/updates-profession/utp-151124