Family Law Act. Australia
subject to this Act, the regulations, the standard Rules of Court and any directions of the Chief Judge, give directions to the officers of the Court in relation to the manner in which the functions and duties of those officers are to be performed and the powers of those officers are to be exercised in relation to proceedings under this Act.
(3) Despite subsection (2), the Principal Registrar must not give directions that relate to an officer’s functions as a family consultant, family counsellor or family dispute resolution practitioner.
37A Delegation of powers to Registrars (1) The Judges, or a majority of them, may, subject to subsection (2), make Rules of Court delegating to the Registrars all or any of the powers of the Court, including, without limiting the generality of the foregoing, all or any of the following powers of the Court: (a) the power to dispense with the service of any process under this Act; (b) the power to make orders in relation to substituted service; (c) the power, in proceedings under this Act, to make orders in relation to discovery, inspection and production of documents in the possession, power or custody of a party to the proceedings or of any other person; (d) the power, in proceedings under this Act, to direct a party to the proceedings to answer particular questions; (e) the power to make orders under: (i) sections 11F and 11G; and (ii) sections 13C and 13D; and (iii) subsection 65LA(1); and (iv) paragraph 70NEB(1)(a); (ea) the power to direct a family consultant to give a report under section 62G; (f) the power, in proceedings under this Act, to make: (i) an order under section 66Q, 67E, 77 or 90SG; or (ii) an order for the payment of maintenance pending the disposal of the proceedings; (g) the power to make, in proceedings under this Act, an order the terms of which have been agreed upon by all the parties to the proceedings; (h) the power, in proceedings under this Act, to make an order adjourning the hearing of the proceedings; (j) the power under section 117 to make an order as to costs; (m) the power to make an order exempting a party to proceedings under this Act from compliance with a provision of the regulations or Rules of Court.
Note: For how this section applies in relation to powers of the Court under certain provisions, see section 37AA.
(2) The powers of the Court that may be delegated under subsection (1) do not include the power to make: (a) a divorce order in proceedings that are defended; or (b) a decree of nullity of marriage; or (c) a declaration as to the validity of: (i) a marriage; or (ii) a divorce; or (iii) the annulment of a marriage; or (d) an excluded child order (as defined in subsection (2A)); or (e) an order setting aside a registered award under section 13K.
(2A) An excluded child order is: (a) a parenting order to the extent to which it provides that: (i) a child is to live with a person; or (ii) a child is to spend time with a person; or (iii) a child is to communicate with a person; or (iv) a person is to have parental responsibility for a child; or (b) an order in relation to the welfare of a child; other than: (c) an order until further order; or (d) an order made in undefended proceedings; or (e) an order made with the consent of all the parties to the proceedings.
(3) A power delegated by applicable Rules of Court under subsection (1), when exercised by a Registrar, shall, for all purposes, be deemed to have been exercised by the Court or a Judge, as the case requires.
(4) The delegation of a power by applicable Rules of Court under subsection (1) does not prevent the exercise of the power by the Court or a Judge.
(5) If the power referred to in paragraph (1)(f) is delegated under subsection (1), a Registrar shall not exercise the power on application by a party to proceedings under this Act unless: (a) the other party to the proceedings appears at the hearing of the application; or (b) the Registrar is satisfied that notice of the intention of the first‑mentioned party to make the application has been served on the other party.
(6) If the power referred to in paragraph (1)(j) is delegated under subsection (1), a Registrar shall not exercise the power except in relation to costs of or in connection with an application heard by a Registrar.
(7) The provisions of this Act, the regulations, the standard Rules of Court, and other laws of the Commonwealth, that relate to the exercise by the Court of a power that is, by virtue of a delegation under subsection (1), exercisable by a Registrar apply in relation to an exercise of the power by a Registrar under the delegation as if references in those provisions to the Court or to a court exercising jurisdiction under this Act were references to a Registrar.
(8) Notwithstanding any other provision of this Act and any provision of the Public Service Act 1999 or of any other law, a Registrar is not subject to the direction or control of any person or body in relation to the manner in which he or she exercises powers pursuant to a delegation under subsection (1).
(9) A party to proceedings in which a Registrar has exercised any of the powers of the Court pursuant to a delegation under subsection (1) may, within the time prescribed by, or within such further time as is allowed in accordance with, applicable Rules of Court made by the Judges or a majority of them for the purposes of this subsection, apply to the Court to review that exercise of power.
(10) The Court may, on application under subsection (9) or of its own motion, review an exercise of power by a Registrar pursuant to a delegation under this section and may make such order or orders as it considers appropriate with respect to the matter with respect to which the power was exercised.
(11) Where: (a) an application for the exercise of a power delegated under subsection (1) is to be, or is being, heard by a Registrar; and (b) the Registrar considers that it is not appropriate for the application to be determined by a Registrar acting under the delegation; the Registrar shall not hear, or continue to hear, the application and shall make appropriate arrangements for the application to be heard by the Court.
(12) Where: (a) a power delegated under subsection (1) is proposed to be exercised in a particular case by a Registrar; but (b) the Registrar has not commenced to exercise the power in that case; a Judge may, on application by a person who would be a party to the proceedings before the Registrar in relation to the proposed exercise of the power, order that the power be exercised in that case by a Judge.
(13) Where an application is made to a Judge under subsection (12) seeking an order that, in a particular case, a power be exercised by a Judge, the Registrar shall not commence to exercise the power in that case until the application has been determined.
(14) The Legislative Instruments Act 2003 (other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in relation to rules of court made under this section: (a) as if a reference to a legislative instrument were a reference to a rule of court; and (b) as if a reference to a rule‑maker were a reference to the Chief Judge acting on behalf of the Judges; and (c) subject to such further modifications or adaptations as are provided for in regulations made under paragraph 125(1)(baa) of this Act.
(15) In this section, Registrar means the Principal Registrar, a Registrar or a Deputy Registrar of the Court.
Note: Powers to make Rules of Court are also contained in sections 26B, 109A and 123.
37AA Delegation to Registrars of powers exercisable by court as constituted in a particular way (1) Without limiting subsection 37A(1), the powers that may be delegated to a Registrar under that subsection include: (a) the powers of the Court, constituted in any way mentioned in subsection 94(2D), to hear and determine applications to which that subsection applies; and (b) the powers of the Court, constituted in any way mentioned in subsection 94AAA(10), to hear and determine applications to which that subsection applies.
(2) If Rules of Court under subsection 37A(1) delegate powers referred to in paragraph (1)(a) or (b) of this section to a Registrar, those Rules may specify modifications of section 37A that are to have effect in relation to the exercise by a Registrar of the delegated powers.
(3) In this section: Registrar has the same meaning as in section 37A.
37B Independence of Registrars (1) Notwithstanding any provision of this Act other than subsection (3), and any provision of the Public Service Act 1999 or any other law, in the performance of a function or the exercise of a power under this Act, under the regulations or under