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Jurisdiction Trap: Division 1 Can’t Review a Division 2 Registrar—So the Case Had to Go Back

In Good & Good [2025] FedCFamC1F 930, Strum J dealt with an awkward (but increasingly common) post-FCFCOA Act problem: two non-party respondents sought review of a Division 2 Senior Judicial Registrar’s decision, but the matter had been transferred into Division 1—creating a jurisdictional “dead end”. His Honour held a Division 1 judge lacked jurisdiction to determine a review of a registrar decision made under Division 2 powers, and therefore requested the Chief Justice transfer the proceedings back to Division 2 so the review applications could actually be heard. ([10], [19]–[21])

🧩 Facts and Issues

Facts: The wife commenced property settlement and spousal maintenance proceedings in Division 2, naming the husband’s mother and brother as second and third respondents, alleging they held property on trust for the husband and seeking alteration of interests under s 79 Family Law Act 1975 (Cth). ([1]–[2]) Those respondents applied to be removed or, alternatively, sought security for costs under s 114UB(2). ([3])

A Senior Judicial Registrar (Division 2) dismissed those applications and also transferred the proceedings to Division 1 under s 149 FCFCOA Act. ([4]) After transfer:

  • the second respondent filed an Application for Review in Division 2; and
  • the third respondent filed an Application for Review in Division 1. ([5]–[6])

Issues:

  1. Does a Division 1 judge have jurisdiction to review a registrar decision made in the exercise of Division 2 powers? ([10], [13]–[15])
  2. If not, what procedural step avoids the review applications being stranded without a court able to hear them? ([19]–[21])

⚖️ Applicable Law – Legislation, Regulations, Rules

Federal Circuit and Family Court of Australia Act 2021 (Cth)

  • s 100 (Division 1 review jurisdiction: review of a delegate exercising Division 1 powers under s 98). ([10]–[12])
  • s 256 (Division 2 review jurisdiction: review of a delegate exercising Division 2 powers under s 254). ([13]–[14])
  • s 29 (associated jurisdiction—considered as a possible “workaround”, but treated as not expanding the specific review scheme). ([16]–[18])
  • s 52 (transfer power—used here by requesting the Chief Justice transfer back to Division 2). ([21])
  • Also referenced: ss 7, 98, 149, 254 (definitions/delegation/transfer framework). ([4], [12]–[14])

Family Law Act 1975 (Cth)

  • s 79 (alteration of property interests). ([2])
  • s 114UB (security for costs in certain circumstances). ([3])

Rules

  • Not determinative to the jurisdiction point, but the orders note r 10.14(b) / r 10.13 of the FCFCOA (Family Law) Rules 2021 (Cth) about correction/variation of orders (standard notation).

📌 Precedents Relied On

  • Imtiaz & Vadim [2025] FedCFamC1F 744 — treated as “on all fours”; core authority confirming the strict separation between s 100 (Div 1) and s 256 (Div 2) review pathways. ([7], [15], [17]–[18])
  • Vang & Chung (No 3) (2024) FLC 94-220; [2024] FedCFamC1A 199 — referenced re the broader jurisdictional “lacuna” and obiter discussion of s 29. ([8], [17])
  • Gilford & Cavaco (2024) FLC 94-183; [2024] FedCFamC1A 55 — cited as another example of unintended jurisdictional consequences post-Act reforms. ([8])

🧠 Analysis

Issue

Whether the Division 1 court can hear a review application challenging orders made by a Division 2 registrar (even where the substantive proceedings have been transferred into Division 1). ([10], [19]–[20])

Rule

  • Division 1 review power is confined to review of a delegate’s exercise of Division 1 powers under s 98, via s 100. ([10]–[12])
  • Division 2 review power is confined to review of a delegate’s exercise of Division 2 powers under s 254, via s 256. ([13]–[15])
  • The wording of ss 100 and 256 is unambiguous and creates an anterior jurisdictional fact: the power being reviewed must have been exercised by a registrar of the same Division that is asked to conduct the review. ([15], [17])
  • s 29 associated jurisdiction cannot be used to expand Division 1’s jurisdiction to review Division 2 registrar decisions where the Act sets out a specific review pathway. ([16]–[18])

Application

  • The orders under review were made by a Senior Judicial Registrar exercising Division 2 delegated powers. ([4], [10])
  • Because s 100 only permits Division 1 to review exercises of Division 1 delegated powers, Division 1 could not hear the third respondent’s review application filed in Division 1. ([10], [20])
  • Conversely, although Division 2 is the proper forum under s 256, there were no longer proceedings in Division 2 after the transfer—so the second respondent’s review application (filed in Division 2) would also be stuck unless the substantive proceeding returned to Division 2. ([19])
  • Following Imtiaz & Vadim, and agreeing with its reasoning, Strum J accepted there was no statutory bridge to allow Division 1 to conduct the review, and s 29 did not solve the problem. ([7], [15], [17]–[18])

Conclusion

The only practical and lawful solution was to request the Chief Justice (who holds the relevant transfer authority) to transfer the proceedings back to Division 2 under s 52, and list both review applications before a Division 2 judge as a matter of priority. Costs were reserved. ([21]–[22])

🧠 Take-Home Lesson

If a registrar decision is made under Division 2 powers, the review must be heard under s 256 in Division 2—and a later transfer of the main proceeding to Division 1 can accidentally create a jurisdictional bottleneck where neither Division can hear the review unless the case is transferred back. This is exactly the “lacuna” the Court flagged as an unintended consequence of the post-Act jurisdiction structure. ([8], [10], [19]–[21]).

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