Hernandez & Cranage

[2022] FedCFamC1A 68

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Hernandez & Cranage [2022] FedCFamC1A 68

Appeal from:

Cranage & Hernandez [2021] FedCFamC1F 259

Appeal number(s):

NAA 23 of 2022

File number(s):

BRC 2550 of 2011

Judgment of:

AUSTIN J

Date of judgment:

17 May 2022

Catchwords:

 FAMILY LAW – APPEAL – Application in an Appeal – Joinder – Where the mother seeks a coercive order pursuant to r 3.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to join the Minister for Home Affairs to the appeal – Where the rule does not empower the Court to compel a party’s joinder to proceedings in either its appellate or original jurisdiction – Where s 32(3)(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) does empower the Court to order the joinder of a party to an appeal – Where there are doubts about the Court’s jurisdiction and power to grant the substantive injunction sought by the mother against the Minister – Where the joinder power should not be exercised in this instance – Where the proper course open to the mother is to seek leave to file an Amended Notice of Appeal naming the Minister as a respondent – Leave granted in that respect – Application otherwise dismissed.

Legislation:

Family Law Act 1975 (Cth) Pt VII

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32

Migration Act 1958 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.03, 3.04, 3.05, 3.07

Cases cited:

Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20

Number of paragraphs:

17

Date of hearing:

17 May 2022

Place:

Newcastle (via video link)

Counsel for the Appellant:

Mr Clift

Solicitor for the Appellant:

Lander & Rogers (Brisbane)

The Respondent:

Did not participate

The Independent Children's Lawyer:

Did not participate

Counsel for the Minister for Home Affairs:

Mr McGlade

Solicitor for the Minister for Home Affairs:

Australian Government Solicitor

ORDERS

NAA 23 of 2022
BRC 2550 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS HERNANDEZ

Appellant

AND:

MR CRANAGE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	17 MAY 2022

THE COURT ORDERS THAT:

1.The appellant is relieved from compliance with r 3.03(5) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

2.The appellant is granted leave to file and serve an Amended Notice of Appeal joining the Minister for Home Affairs to the appeal within 7 days.

3.The Application in an Appeal filed on 26 April 2022 is otherwise dismissed.

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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hernandez & Cranage has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. This is an appeal from a single order made in parenting proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) by a judge of the Federal Circuit and Family Court of Australia (Divison 1) on 7 December 2021.

2. The proceedings at first instance were conducted between the appellant mother, respondent father, and an Independent Children’s Lawyer (“the ICL”) acting in the interests of the parties’ only child.

3. The primary judge ordered that the child live with the mother. Orders concerning the allocation of parental responsibility for the child and the time he must spend with the father were made in the alternative, thereby accommodating the child’s prospective residence with the mother in the Country J if she is forced to leave Australia, since she is from Country J and is only able to reside in Australia pursuant to a visa issued under the Migration Act 1958 (Cth). The child and the father are Australian citizens, but the mother is not. Neither the mother nor the father appeals from those orders.

4. To avert the prospect of the Minister for Home Affairs (“the Minister”) revoking the visas granted to the mother and the child’s older siblings, thereby thwarting their desire to continue living in Australia, the mother sought an injunction at first instance restraining the Minister from doing so. Her application was for an order in these terms:

   1. Pursuant to s 114 of the Family Law Act 1975 (Cth):

   …

   (b)The Minister for Home Affairs and subsequent holders of that office granted powers and responsibilities under the Migration Act 1958 (Cth), whether by himself or by a delegate, is restrained from cancelling or revoking:

   (i)the mother’s bridging visa;

   (ii)the bridging visa of the child B, born 2004; or

   (iii)the bridging visa of the child C, born 2005,

   until 21 September 2027.

5. The primary judge reasoned no such order could or should be made (at [12] and [148]–[150]).

6. Consequently, an order was made in these terms:

   51.      All outstanding applications are otherwise dismissed.

7. The mother’s appeal lies only from that solitary dismissal order.

8. The Minister was not joined as a party to the proceedings below, but was nonetheless legally represented before the primary judge, apparently amicus curiae.

9. The mother did not join the Minister as a party to her appeal, though the Minister was aware of the appeal because she again appeared by legal representative at a directions hearing before the Appeal Registrar on 11 April 2022. The Minister again appeared by counsel today to resist the mother’s application.

10. The mother now wants the Minister joined to the appeal. On 26 April 2022, she filed an Application in an Appeal seeking an order in these terms:

    1.The Minister for Home affairs be joined as a party to the Appeal proceedings pursuant to Rule 3.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

    (As per the original)

11. Rule 3.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides as follows:

    Adding a party

    (1)      A party to a proceeding may include any person as a party by:

    (a)naming the person as a party in the application, response or reply; and

    (b)serving on the person a copy of the application, response or reply and all other relevant documents filed in the proceeding.

    (2)A party may add another party after a proceeding has started by amending the application or response to add the name of the party.

    (3)      A party who relies on subrule (2) must:

    (a)file an affidavit setting out the facts relied on to support the addition of the new party, including a statement of the new party's relationship (if any) to the other parties; and

    (b)       serve on the new party:

    (i)a copy of the application, amended application, response or amended response; and

    (ii)       the affidavit referred to in paragraph (a); and

    (iii)      any other relevant document filed in the proceeding; and

    (c)       serve on the other parties:

    (i)a copy of the application, amended application, response or amended response; and

    (ii)       the affidavit referred to in paragraph (a).

    (4)A party may only add another party after the first court date with the leave of the court.

    (5)      A party who relies on subrule (4) must:

    (a)       file:

    (i)        an Application in a Proceeding; and

    (ii)an affidavit setting out the facts relied on to support the addition of the proposed new party, including a statement of the proposed new party's relationship (if any) to the other parties; and

    (b)       serve on the proposed new party:

    (i)        a copy of the Application in a Proceeding; and

    (ii)       the affidavit referred to in subparagraph (a)(ii); and

    (iii)      any other relevant document filed in the proceeding; and

    (c)       serve on the other parties:

    (i)        a copy of the Application in a Proceeding; and

    (ii)       the affidavit referred to in subparagraph (a)(ii).

12. As can be seen from the terms of the rule, the Court is not empowered to compel a party’s joinder to proceedings, either in its appellate or original jurisdiction. The mother’s application for the coercive joinder order on the premise of that rule is misconceived.

13. However, the provisions of s 32(3)(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”) appear to now empower the Court to order the joinder of a party to an appeal. Neither the FCFCA Act nor any regulation specifies the criteria by which the joinder of a party should be decided. Assuming the power is discretionary and is to be exercised judicially, it should not be exercised in this instance. The doubts about the Court’s jurisdiction and power to grant the substantive injunction sought by the mother against the Minister are too great to warrant it (Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at 403–407, 434–435 and 439).

14. The premise of the appeal and the consequential relief sought by the mother is of evident interest to the Minister, but, in the absence of any application by the Minister to intervene in the appeal (rr 3.04 or 3.07), the proper course open to the mother is to file an Amended Notice of Appeal naming the Minister as a respondent to the appeal. The Minister’s joinder is then ensured by the mother’s voluntary act. The Minister will then participate voluntarily in the appeal but, in the event of her unwillingness, may apply for removal as a party (r 3.05).

15. However, since, the mother’s prospective joinder of the Minister to the appeal will occur after “the first court date”, leave is required to file any Amended Notice of Appeal joining the Minister (r 3.03(4)). Such leave should be granted, but the mother should only have a short period within which to avail of such leave.

16. There can be no prejudice to the Minister because she intends to participate in the appeal in the capacity of amicus curiae, taking advantage of Order 1 made by the Appeal Registrar on 11 April 2022 in these terms:

    1.The Minister for Home Affairs be permitted to file written submissions and appear at any procedural or other hearing in the appeal including the final hearing of the appeal.

17. For those reasons, the following orders are made.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       17 May 2022