Bima & Anor and Minister for Immigration and Border Protection - [2014] FamCA 1094

FAMILY COURT OF AUSTRALIA

BIMA AND ANOR & MINISTER FOR IMMIGRATION AND BORDER PROTECTION

[2014] FamCA 1094

FAMILY LAW – PRACTICE AND PROCEDURE – Disjoinder – No cause of action or relief sought against the respondent – Test for removal considered – Can this Court proceed to hear an application under s 69VA without a contradictor? – Various authorities of the civil jurisdiction and the Full Court of this Court contemplated – No contradictor necessary in such applications – Application for disjoinder granted.

Family Law Act 1975 (Cth)

B Pty Ltd and Ors v K and Anor (2008) 219 FLR 107
Falls and Falls and Ors (No 2) [2010] FamCA 377
Hankinson v De Vries and Ors [2013] FamCA 455
In the Marriage of Lanceley [1994] FamCA 94
Rosenthal v The Sir Moses Montefiore Jewish Home (Unreported, Supreme Court of New South Wales, Young J, 26 July 1995)
Swindells v State of Victoria and Anor [2012] VSC 457

APPLICANT:

Mr Bima and Ms Wibowo

RESPONDENT:

Minister For Immigration And Border Protection

FILE NUMBER:

ADC

3576

2014

DATE DELIVERED:

9 December 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

27 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Finlayson

SOLICITOR FOR THE APPLICANT:

Greg Finlayson

COUNSEL FOR THE RESPONDENT:

Australian Government Solicitor

SOLICITOR FOR THE RESPONDENT:

Mr McDermott

Orders

That the respondent Minister for Immigration and Border Protection be removed as a party to the proceedings.
That the application in a case filed 13 November 2014 and the response thereto (save as to costs) are otherwise dismissed.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 8 January 2015 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 22 January 2015 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.
That the application filed 3 October 2014 is listed for final hearing at 10.00am on 12 December 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bima and Anor & Minister for Immigration and Border Protection has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: ADC 3576 of 2014

Mr Bima and Ms Wibowo

Applicant

And

Minister for Immigration and Border Protection

Respondent

REASONS FOR JUDGMENT

On 3 October 2014, an application by Mr Bima and his wife Ms Wibowo was filed in which the respondent was The Minister for Immigration and Border Protection. No order was then, or since, sought against the respondent Minister. The only order that was sought was:
The Court declares that: the applicants are the parents of [the child R].
The matter came before me in the Judicial Duty List on 5 November 2014 at which time, the respondent had not filed any answering material but he was represented by the Australian Government Solicitors’ office. It was agreed there was a dispute but the position of the respondent was that he desired to be removed as a party. That led to the hearing being set for 27 November 2014. Each party agreed to file and serve outlines of argument.
Before dealing with the disjoinder application of the respondent, the following details put context to the application.
In an affidavit sworn by Mr Bima (to whom I shall refer in these reasons as “the husband”) (although on the outside cover of the affidavit it refers to his solicitor as having sworn the document) it was said that he was the father of R (“the child”). The child is the daughter from the husband’s previous relationship prior to his marriage to Ms Wibowo (“the wife”). The husband said that he had had sole parental responsibility for the child for around seven years.
The husband said that he and the wife were married in a “customary” ceremony of marriage in Indonesia in March 2013 and that marriage was registered at the civil office in April 2013. He said that following a “customary adoption process” and the marriage, a new birth certificate was issued on his application that showed the child to be a child of that marriage. He annexed a copy of the certificate of what he described as the birth certificate for the child arising out of this 2013 process.
Quite inappropriately, and with the evidence being questionably inadmissible, the husband asserted that he spoke and read the Indonesian language and was able to interpret what the certificate said. He gave no indication of his expertise or qualification to give that opinion. He said that the certificate stated that the child was born in January 2008 but she was “child No 1” of the marriage of he and the wife. It will be obvious that the child is not the biological child of the wife but that somehow (and it was not explained) the Indonesian authorities were prepared to issue a birth certificate showing the wife as a parent on the basis of some customary adoption process and the parties’ marriage. No evidence was put before the Court as to what this adoption process meant in law and there was no expert evidence otherwise. That may not be necessary for the purposes of this disjoinder application but it does give rise to the question of the relevance of the joining by the applicants of the respondent to these proceedings.
The husband’s affidavit went on to say that his wife had made an application for permanent residence in Australia along with the child and the “delegate” of the Minister disputed that he and his wife were the “lawful parents” of the child. He then enclosed correspondence between the delegate and his solicitor. That was the basis upon which he then sought a declaration that he and his wife were the parents of the child for the purposes of the laws of the Commonwealth. Although there was no specific order sought in the application, the husband said that if the respondent opposed the declaration that he and the wife sought, he required the Minister to “specify his allegations” in this proceedings. When tested about what that meant, the applicants’ solicitor said that it was expected that the respondent would “help” the Court.
On 26 November 2014, the solicitor, without any narrative to an affidavit, filed a raft of annexures much of which bore no context to the affidavit and again, that may not be relevant to the specific disjoinder application.
Rule 6.04 of the Family Law Rules 2004 provides that a party may apply to be removed as a party to a case. No definition is found in the Rules as to the basis upon which such a determination should be made.
The applicants submitted that whilst the test for joinder and misjoinder (sic) were the inverse of one another, the power for joinder was wider and the power to disjoin, narrower than was submitted in the outline of argument upon which the solicitors for the respondent relied. The respondent submitted the approach to joinder should be the same as that for disjoinder. The basis for the applicant’s submission was that the rule that should be applied should be the specific High Court Rule rather than rule 6.04 in the standard rules of court. I reject that submission.
Section 38(2) of the Family Law Act 1975 (Cth) (“the Act”) provides that insofar as the provisions relating to standard rules of court along with practice and procedure were insufficient, the rules of the High Court in force for the time being, were to apply mutadis mutandis insofar as they were capable of application but also subject to any directions of the Court. In other words, the submission of the applicants was that because Rule 6.04 was silent about how to determine the issue, the Court should look at the High Court rule.
Before the provisions of s 38(2) of the Act can be applied, the Court has to be satisfied that there is an omission in the rule of this Court such that there is an insufficiency or defect without which the Court cannot effectively operate. The difficulty with the argument is that the rules of court contain not only a dispensing power but also create a positive obligation on the Court to fill a vacuum if one exists. Rule 1.09 of the Family Law Rules 2004 reads as follows:
If the court is satisfied that:
(a) a legislative provision does not provide a practice or procedure; or
(b) a difficulty arises, or doubt exists, in relation to a matter of practice or procedure;
it may make such orders as it considers necessary.
Before resort can be had to the High Court Rules, the Court should be satisfied that the provisions of Rule 1.09 cannot solve the problem said to arise because of insufficiency or defect in Rule 6.04
Unlike other jurisdictions, in this Court there is no necessity for a party issuing proceedings to seek to join another party. The Rules provide for the naming of this person on the application to be sufficient. Thus, once joined, the onus falls on that person so joined, to seek removal. To the extent that the silence in the rule is a defect, I am satisfied Rule 1.09 should be applied. In my view, the basis upon which that removal application can be made must be the inverse of the basis upon which someone would be joined if not simply named on the application. The logic of that lies in what I now turn to.
The relevant test for the determination of an application for joinder was set out by the Full Court in B Pty Ltd and Ors v K and Anor (2008) 219 FLR 107 where the Full Court held (at 116):
It is not proper to allow a joinder of third parties merely upon the formulation of a paragraph in, or to be added to, an application, on the basis that at trial facts to support the application may be asserted and proved. Sufficient facts must be asserted to demonstrate that, if proved, the law arguably provides the relief sought.
In Falls and Falls and Ors (No 2) [2010] FamCA 377, I followed the Full Court decision just mentioned. I there observed that details in an affidavit in support of an application were not necessarily sufficient. What I was referring to was the fact that some form of pleading or other document indicating the relief sought against the respondent or party joined was necessary.
In his written submission Mr Finlayson, the solicitor for the applicants submitted:
The applicants’ respectful submission is that the authorities to which the solicitors for the respondent Minister refer are not correctly decided, referring in the main only to “necessary” parties and failing to correctly discern the source of power and its scope.
When I challenged Mr Finlayson about how he could put that submission to me on the basis that I was bound by a determination of the Full Court as I have set out above, he distanced himself from that position. In my view, the submission that the authorities of this Court do not point to the source of power and/or are wrong, and that the reliance must therefore be had on the High Court rules, is misconceived.
The respondent then submitted that an additional “framework” for evaluating joinder was to examine whether the proposed party was a “necessary” party which was a concept that required evaluation of the underlying cause of action brought against the party joined (who was seeking to be disjoined) or the person proposed to be joined. It was submitted based on the decision of Hankinson v De Vries and Ors [2013] FamCA 455 where Kent J opined that Rule 6.02 was no more than a longstanding reflection of the law that where a person whose rights may be affected, should be a party to the proceedings so that they could be provided procedural fairness and natural justice. I respectfully agree with his Honour’s remarks. What is critical however is that a party can only be a necessary party to the proceedings if some order other than an interlocutory order or direction is sought against them. To be a party, there must be some underlying relief proposed which requires them to be given an opportunity to be heard. No relief is sought against the respondent. There is no basis for the respondent therefore to be seen as a necessary party to the proceedings. To the extent that some information is needed from the respondent, the subpoena process can be used.
Significantly, if as appears here, the applicants are concerned that the respondent will thwart their rights, as Mr McDermott acknowledged, a declaration of the type sought by the applicants under s 69VA is conclusive evidence of parentage for the purposes of all laws of the Commonwealth. Although Mr McDermott relied upon various aspects of the laws that related to the issuing of visas by the Commonwealth, those are matters that the applicants can take up at another time if they consider that the Minister is ignoring the laws of the Commonwealth presupposing the Court makes a declaration under s 69VA. Importantly it must also be said that, as the respondent was clearly on notice about the basis of the parentage argument, he could hardly complain later if a declaration was made and he was aware of the circumstances under which the applicants were seeking it. Mr McDermott on behalf of the respondent submitted that even if the respondent was not removed from the proceedings, the Minister had no views about the declaration and would remain mute because his issue related to the legislation of the Commonwealth in relation to visa policies.
Mr Finlayson on behalf of the applicants submitted that there was “furious agreement” about who were the parents of the child. Whilst that might be so, the substantive issue is still to be determined as to whether a declaration as to parentage can be made. The fact that the furious agreement includes Indonesian authorities and indeed the Victorian Registry of Births, Deaths and Marriages is hardly to the point. Mr Finlayson then submitted:
The only person in the world who takes issue with the applicants’ parental rights and responsibilities is the respondent Minister.
I am not entirely sure of the relevance of that submission. According to Mr McDermott, the respondent’s focus is on the visa issue. It seems that the respondent disputes that the wife is a parent of the child. Again, that is a matter for the applicants to establish.
In my view, there is no basis for the respondent to be joined in circumstances where there is no relief sought against him.
A second argument raised by Mr Finlayson on behalf of the applicants was that there could not be an application without a contradictor. He submitted that there were a number of authorities that supported that conclusion. He pointed to In the Marriage of Lanceley [1994] FamCA 94, Rosenthal v The Sir Moses Montefiore Jewish Home (Unreported, Supreme Court of New South Wales, Young J, 26 July 1995) and Swindells v State of Victoria and Anor [2012] VSC 457. Each of those decisions needs to be seen in its proper context. In Rosenthal, the issue concerned an elderly woman and the issuing of a power of attorney. It is clear from reading the judgment that Young J was concerned about the fact that there was no contradictor to test the propositions that were being put that might otherwise make the evidence unchallenged. There, his Honour was concerned about making orders in relation to the elderly woman who was incapable of granting a power of attorney. The case is clearly distinguishable as being peculiar to its facts.
In Swindells, the plaintiff brought an action against the State of Victoria and also the individual Minister for Energy and Resources. What the Associate Justice concluded was that the Minister was not a necessary defendant but that he was liable in a joint and several way even if not an essential defendant. The issue was not of major significance because the State of Victoria would have remained as a contradictor in any event because the cause of action was against it too. As was observed, the declaration if made, was good against the world and I interpolate, bound the State of Victoria. Using that logic, in this case, s 69VA is clear in its terms. A declaration binds the Commonwealth for the purposes of its laws. It will be a matter for the applicants to establish their case in law and nothing about that application indicated the necessity for the joinder of the respondent to be essential.
In Lanceley, proceedings were brought by the wife against the husband but he remained neutral and did not file any answering material to the wife’s claim that notwithstanding property was in the husband’s name, one half of his interest was held on trust for her. In that case, the husband owed his former employer $2.7 million. It is obvious from reading the judgment that the concern of the Full Court was about the absence of a proper contradictor and particularly, the reference to the fact that the proceedings were undefended. There was a very strong suggestion that the Court was worried that the undefended nature of the proceedings enabled the wife to avoid the debt of the husband. As the Full Court observed, the absence of a contradictor did not make the proceedings undefended. Unlike the civil jurisdiction, even if the matters were not defended, the applicant does not receive the orders sought by default. The Full Court observed that it was not necessary for there to be a proper contradictor for the purposes of the proceedings because the Court still had to be satisfied about the relevant legal issues before it could make the (or any) orders sought. In those circumstances, Lanceley does not assist the applicants here.
In my view there is no basis to say that a contradictor is necessary. The power of the Court to make orders lies in the Act. The provisions of s 69VA are relied upon and if the applicants establish the legal foundation for a declaration, they will no doubt succeed. As I have already observed, the Minister has no interest in the matter and acknowledges the binding nature of the declaration.
There is no basis therefore for the respondent to be joined or retained in the proceedings because of the absence of a contradictor otherwise.
On any view therefore, the applicants should not have joined the respondent and the respondent’s application for removal must succeed.
The respondent indicated that he would seek costs if successful and both sides agreed that that should be dealt with on written submissions and determined in chambers and I shall make orders accordingly.

I certify that the preceding Twenty Eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 December 2014.

Associate:

Date: 9 December 2014