Imtiaz & Vadim [2025] FedCFamC1F 744 (20 October 2025)

1. There is no Court by the name "Federal Circuit and Family Court of Australia". This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).
2. The design of the seal affixed to this Order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The substantive proceedings involving a parenting and property dispute were commenced on 17 June 2025, by Mr Imtiaz ("the father") against Ms Vadim ("the mother"). The parenting dispute involves the parents' three-year-old daughter X. Currently, the mother and child are in China and the mother wishes to remain in China until next year.
2. On 30 September 2025, an order was made by a registrar, exercising the powers of the Federal Circuit and Family Court of Australia (Division 2), requiring, among other things, the mother to return the child to Australia forthwith.
3. On 8 October 2025, the mother filed in this Court an Application for Review of that order.
4. On 30 September 2025, the registrar also made the following order:
   1. The matter forthwith be transferred to Division 1 of the Federal Circuit and Family Court of Australia [sic] ...
5. On 13 October 2025, the parties were advised that the Court would be assisted by submissions on the jurisdiction of this Court to determine the review of a decision of a registrar who had exercised the powers of the Federal Circuit and Family Court of Australia (Division 2). While no submissions were forthcoming, Mr Dickson KC for the mother, informed the Court that he and counsel for the father and counsel for the Independent Children's Lawyer were all of the view that I did not have jurisdiction to hear the Review and jointly requested that the proceedings be re-transferred to the Federal Circuit and Family Court of Australia (Division 2).
6. It is regrettable that no submissions were forthcoming. In any event, I acceded to the application of the parties to request a re-transfer of the proceedings because I tentatively concur with counsel that I do not have jurisdiction to determine the Review and indicated that I would provide short reasons.
7. It would be remiss of me not to observe that, contrary to the impression created by the transfer order made on 30 September 2025, there is no court called the Federal Circuit and Family Court of Australia. The Federal Circuit and Family Court of Australia (Division 1) is in fact a separate and distinct Court from the Federal Circuit and Family Court of Australia (Division 2).[1] The Federal Circuit and Family Court of Australia (Division 1) is a superior court of record.[2] The Federal Circuit and Family Court of Australia (Division 2) is a court of record.[3] Until 1 September 2021, the Federal Circuit and Family Court of Australia (Division 1) was known as the Family Court of Australia and the Federal Circuit and Family Court of Australia (Division 2) was known as the Federal Circuit Court of Australia.
8. Apart from the introduction of the cumbersome nomenclature, the most significant change introduced by the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("FCFCOA Act") was to limit this Court's original jurisdiction in family law and child support matters to proceedings transferred to this Court by the Federal Circuit and Family Court of Australia (Division 2). This has resulted in unintended consequences where this Court has had no jurisdiction to determine certain matters.[4] In an attempt to overcome this lacuna in certain matters, the Chief Justice delegated his power to uplift proceedings from the Federal Circuit and Family Court of Australia (Division 2) to this Court, to the Justices of this Court. The Justices of this Court, apart from the Chief Justice, remain unable to transfer matters to the Federal Circuit and Family Court of Australia (Division 2).
9. The jurisdiction of this Court to determine a review of a registrar's decision is prescribed by s 100 of the FCFCOA Act to a decision of a registrar exercising powers of this Court. As already noted, the order under review involved the exercise of powers of the Federal Circuit and Family Court of Australia (Division 2).
10. Section 100 of Chapter 3 of the FCFCOA Act provides:

(1) A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 1) under section 98 may:

(a) within the time prescribed by the Rules of Court; or

(b) within any further time allowed in accordance with the Rules of Court;

apply to the Court for review of that exercise of power.

(2) The Federal Circuit and Family Court of Australia (Division 1) may, on application under subsection (1) or on its own initiative, review an exercise of power by a delegate under section 98, and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.

...

1. A 'delegate', for the purposes of Chapter 3 of the FCFCOA Act, is defined by s 7 of the FCFCOA Act and means the Chief Executive Officer or a Senior Registrar or Registrar of this Court. Section 98 makes provision for the judges of this Court, or a majority of them, to make Rules of Court delegating any of the powers of this Court to a delegate or a prescribed class of delegate.
2. The power of a judge of the Federal Circuit and Family Court of Australia (Division 2) to review a registrar's decision is prescribed by s 256 of Chapter 4 of the FCFCOA Act which provides:

(1) A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 254 may:

(a) within the time prescribed by the Rules of Court; or

(b) within any further time allowed in accordance with the Rules of Court;

apply to the Court for review of that exercise of power.

(2) The Federal Circuit and Family Court of Australia (Division 2) may, on application under subsection (1) or on its own initiative, review an exercise of power by a delegate under section 254, and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.

...

1. A 'delegate', for the purposes of Chapter 4 of the FCFCOA Act, is defined by s 7 of the FCFCOA Act and means the Chief Executive Officer or a Senior Registrar or Registrar of the Federal Circuit and Family Court of Australia (Division 2). Section 254 makes provision for the judges of that court, or a majority of them, to make Rules of Court delegating any of the powers of that court to a delegate or a prescribed class of delegate.
2. There is no ambiguity in those provisions.
3. However, s 29 of the FCFCOA Act provides:

To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 1) in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) is invoked.

1. No submissions were made as to the possible application of s 29 of the FCFCOA Act to the circumstances of this case.
2. My tentative view is that the very specific wording of ss 100 and 256 of the FCFCOA Act create an anterior jurisdictional factor, namely, that the power being reviewed must be one exercised by a registrar in the court hearing the review, and that s 29 cannot be relied upon to expand the jurisdiction of this Court to hear a Review of a decision of a registrar exercising powers of the Federal Circuit and Family Court of Australia (Division 2).
3. If the legislature intended this Court to have jurisdiction to determine Reviews of decisions made by registrars in the Federal Circuit and Family Court of Australia (Division 2), it could easily have said so.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew.

[1] Federal Circuit and Family Court of Australia Act 2021 (Cth) s 8 ("FCFCOA Act").

[4] Gilford v Cavaco (2024) 69 Fam LR 387. Cf Vang & Chung (No 3) [2024] FedCFamC1A 199. See also Duibh & Duibh [2024] FedCFamC1F 565.