Can Senior Judicial Registrars lawfully hear and determine “Rice & Asplund cases”?

In my opinion, the answer is no.

Subsection 65DAAA(1) of the Family Law Act 1975 commences with:

“If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless: …”

Subsections 65DAAA(2), (3) and (4) are informative or exclusionary.

There is no power to a court provided within that section.  Rather, it imposes a restriction or limitation on the exercise of a power.¹  It is akin to section 60I(7) in that respect.

Section 65DAAA has been expressed as the legislation of the ‘Rule’ in Rice & Asplund.  That may be an accurate description. The ‘Rule’ was never itself a power but a mandatory consideration in a relevant parenting matter.

Notwithstanding that no power can be found in section 65DAAA, the Family Law Rules 2021 purport to delegate the ‘power’ under section 65DAAA to Senior Judicial Registrars who have been approved by the Chief Justice.²

That delegation is ineffective because no power has been delegated.

Senior Judicial Registrars are delegated the power to summarily dismiss a matter.³

However, subsection 254(3)(d) of the Federal Circuit and Family Court of Australia Act 2021 precludes the delegation of power to registrars to make an ‘excluded child order’.

Excluded child order is defined in section 7.  Relevantly, it is ‘an order in relation to the welfare of a child’ other than a make-up time order, an order until further order, an order in undefended proceedings, or an order by consent.

The authorities in relation to the Rice & Asplund issue are inconsistent or at least uncertain about whether dismissing a parenting application on the basis of the ‘Rule’ could be summary dismissal.

Taking a liberal approach to delegated powers, assume that a Senior Judicial Registrar is empowered to summarily dismiss a parenting application on the basis of no reasonable prospects of successfully satisfying the requirement of subsection 65DAAA(1)(b).  Exercising the power still requires the consideration of the best interests of the child.  

In Defrey & Radnor [2021] FamCAFC 67, the Full Court emphasised that identifying changes in circumstances is a fact-finding step, but the second step requires the exercise of a discretion.  It would seem that subsection 65DAAA(1) is no different.

An order that dismisses the parenting application is made because the court is not satisfied that litigation, when held up against all other circumstances, is not in the child’s best interests.

The Full Court in Defrey & Radnor said at [21]:

“… Axiomatically that is because unless other considerations are more weighty, it is not in the best interests of a child for that child to be the subject of repeated litigation between his/her parents. …”

It follows that an order summarily dismissing a parenting application, based on no reasonable prospects of successfully satisfying s65DAAA(1)(b), must be an order in relation to the welfare of the child.

It is plainly not an order: until further order, by consent, in default, or for make-up time.⁴

It is therefore an excluded child order, the power for which cannot be delegated to registrars.

David Marcolin
Senior Associate

¹ Albeit an ineffective limitation see subsection 65DAAA(4).
² Schedule 4, Clause 2, Item 3.9.
³ Schedule 4, Clause 2, Part 31 of the Family Law Rules 2021.
⁴ The exceptions to the ‘excluded child order’ definition.