Hernandez & Cranage (No 2)
[2022] FedCFamC1A 103
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Hernandez & Cranage (No 2) [2022] FedCFamC1A 103
Appeal from: Cranage & Hernandez [2021] FedCFamC1F 259 Appeal number(s): NAA 23 of 2022 File number(s): BRC 2550 of 2011 Judgment of: TREE, JARRETT & CAMPTON JJ Date of judgment: 12 July 2022 Catchwords: FAMILY LAW – APPEAL – Parenting – Where the mother appeals from a single final order dismissing her application to join the Minister for Home Affairs as a party to the proceedings and leave to amend to seek an injunction against the Minister from cancelling or revoking the mother and her two children’s visas – Where the proposed appeal from that order is incompetent by operation of s 26(2)(b)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Minister seeks costs of the appeal – Where the Minister did not raise the incompetency of the appeal and had opportunity to do so prior to the appeal hearing – Circumstances do not justify an order for costs – Minister’s application for costs dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 67ZC, 68B, 114, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26
Judiciary Act 1903 (Cth) s 78B
Migration Act 1958 (Cth)
Family Law Rules 2004 (Cth) rr 6.03, 11.10
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.03, 15.06
Cases cited: KN and SD and Secretary, Department of Immigration & Multicultural & Indigenous Affairs (2003) FLC 93-148; [2003] FamCA 610
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20
SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207; [2012] FCAFC 26
Number of paragraphs: 46 Date of hearing: 30 June 2022 Place: Brisbane Counsel for the Appellant: Mr Clift Solicitor for the Appellant: Lander & Rogers (Brisbane) The Respondent: Did not participate Counsel for the Minister for Home Affairs: Mr McGlade Solicitor for the Minister for Home Affairs: Australian Government Solicitor The Independent Children's Lawyer: Did not participate ORDERS
NAA 23 of 2022
BRC 2550 of 2011FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS HERNANDEZ
Appellant
AND: MR CRANAGE
First Respondent
MINISTER FOR HOME AFFAIRS
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
TREE, JARRETT & CAMPTON JJ
DATE OF ORDER:
30 JUNE 2022
THE COURT ORDERED ON 30 JUNE 2022 THAT:
1.The Amended Notice of Appeal filed 23 May 2022 be dismissed.
2.The second respondent’s application for costs be 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Hernandez & Cranage (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, JARRETT & CAMPTON JJ:
INTRODUCTION
By Amended Notice of Appeal filed on 23 May 2022, Ms Hernandez (“the mother”) sought to make use of Pt VII of the Family Law Act 1975 (Cth) (“the Act”) as a vehicle to secure the continued residence in Australia of she and her two children from a prior marriage, one of whom is now over 18 years of age, after exhausting her efforts to achieve that objective pursuant to the Migration Act 1958 (Cth) (“the Migration Act”).
For the reasons that follow, we dismissed the Amended Notice of Appeal. These reasons also explain why on the hearing of the appeal, we dismissed the application of the Minister for Home Affairs (“the Minister”) for costs of the appeal.
BACKGROUND
Mr Cranage (“the father”) was born in January 1974 in Country J. The mother was born in February 1978 in Country J.
The father and mother are the parents of one child, X, born in 2009 (“X”). X is aged 12.
X has two sisters from a previous relationship of the mother, B born in 2004 (“B”) and C born in 2005 (“C”) (collectively, “X’s sisters”). B was born in Country D and C was born in Country J. The father of B and C, Mr Hernandez, obtained a Temporary Work (Skilled) (subclass 457) visa to work in Australia in 2006. The mother and X’s sisters first arrived in Australia in 2006 as dependents of Mr Hernandez. They have lived in Australia on a full time basis since mid 2007. Some time after their arrival in Australia, the mother and Mr Hernandez separated. Mr Hernandez now resides in Country K.
The mother and the father commenced a relationship in early 2008 and separated in May 2010.
Both the father and X are Australian citizens. The mother and X’s sisters are not. They currently remain in Australia on terms identified later in these reasons. X has always lived primarily with his mother and sisters.
Subsequent to the parents’ separation, X’s parenting was regulated by way of consent orders made in the Federal Magistrates Court (as it was then) on 25 February 2013. Those orders provided for the parents to have equal shared parental responsibility for X, for him to live with his mother and to spend time with his father on a graduated and increasing basis. Since 2016 X has spent time with his father on alternate weekends from after school Friday to before school on Tuesday and for half of the short school holidays and half of the Christmas holidays each year, in addition to other special days.
The primary judge’s reasons record the mother’s lengthy process to permit her and X’s sisters to remain in Australia by way of the Migration Act which commenced in March 2012 and was exhausted by December 2017.
On 22 May 2018 the mother filed an Initiating Application seeking urgent orders as to the parenting of X. The primary relief sought was for X to be permitted to relocate with the mother to Country J, for him to live with the mother in that country and spend time with the father as agreed between the mother and the father. It was the mother’s argument at both first instance and on appeal that:
The parents have co-parented X successfully since February 2013. This proceeding is not really of their making, rather, they have been required to deal with the prospect of X being separated from his mother and sisters, who he lives with, if they are removed from Australia…
(Mother’s Summary of Argument filed 6 May 2022, paragraph 2).
This was accepted by the primary judge, who observed that “one would be forgiven for wondering why these parents are again before a court invested with jurisdiction to make parenting orders about X” (at [5]).
The primary judge recorded:
8.… on 14 June 2018, the Department of Home Affairs determined that it would no longer issue any further bridging visas and required the mother and [X’s sisters] to leave Australia by about 11 July 2018; on 27 June 2018, the Assistant Minister for Home Affairs exercised his personal powers of intervention under s 195A of [the Migration Act] to grant them Bridging (Removal Pending) (subclass 070) visas. Such visas, which permit X’s mother and his sisters to remain living in Australia, do not have a ceasing date. However, it is uncontroversial that they would cease if the Minister gave each of X’s mother and sisters a notice stating that the Minister is satisfied that their removal from Australia is reasonably practicable or that they had breached a condition to which the visa is subject.
(Footnotes omitted).
Upon the Minister granting the Bridging (Removal Pending) (subclass 070) visas, the immediate urgency underscoring the mother’s Initiating Application diminished.
The mother did not contend that the Minister had acted otherwise than lawfully in discharging the statutory functions and duties entrusted to her by the parliament throughout the Migration Act process.
The proceedings were listed for trial before the primary judge on 11 and 12 November 2019.
On 6 November 2019, being five days prior to the commencement of the trial, the mother filed an Amended Initiating Application in which she sought injunctive relief pursuant to s 114 of the Act restraining:
(a)Herself from relocating to Country J until 2027 (being the date of X’s eighteenth birthday); and
(b)The Minister from cancelling or revoking the bridging visas of the mother and X’s sisters until 2027.
The Minister was not named as a party to the Amended Initiating Application moved upon by the mother at trial. Unsurprisingly, the Minister did not attend the first two days of the trial.
By the time the trial had commenced, the mother’s solicitors had issued notices pursuant to
s 78B of the Judiciary Act 1903 (Cth) in compliance with orders made by the primary judge on 8 November 2019. Those orders noted the Court’s intention to “take the evidence in the final hearing of this matter… and then to adjourn the hearing part heard, to a date to be fixed, so as to afford the… opportunity to be heard” to those upon whom s 78B notices had been served.
The evidence was completed on the second day of trial, being 12 November 2019, and the proceedings adjourned for mention on 12 December 2019. On that date, the final day of the trial was listed on 12 March 2020 for oral submissions.
On 14 February 2020 the mother filed written submissions annexing a Minute of Order. The minute named the Minister as the second respondent and expanded the mother’s injunctive relief to be grounded from ss 67ZC and 68B in addition to s 114(3) of the Act. The advent of the COVID-19 pandemic and its complications resulted in the 12 March 2020 listing being adjourned to 16 October 2020. On that date, the Minister appeared in response to what was in reality, an oral application by the mother seeking leave pursuant to r 6.03 of the then applicable Family Law Rules 2004 (Cth) (“the old Rules”) to join the Minister to the proceedings and for leave pursuant to r 11.10(1)(a)(ii) of the old Rules to amend her relief sought in the same terms of her Minute of Order, which she had incorporated into a draft Further Amended Initiating Application.
The primary judge delivered judgment and made final orders on 7 December 2021. Those orders provided for the allocation of parental responsibility for X, for him to continue to live with the mother, and the terms on which he would spend time with the father in the alternative, accommodating his prospective residence with the mother should she continue to live in Australia or should she return to Country J if she is forced to leave Australia.
After making 50 other orders regulating the parenting of X, the primary judge made the following further order:
51. All outstanding applications are otherwise dismissed.
The effect of the order was twofold. First, it dismissed the mother’s application for injunctive orders sought against herself. Second, it dismissed the mother’s oral application to join the Minister to the proceedings and to amend her relief to seek injunctive orders against the Minister as a party to the proceedings.
THE APPEAL
It is from this solitary dismissal order only that the mother appeals. She does not seek to disturb any other order made by the primary judge. None of the findings and determinations of the primary judge grounding the regime of parenting orders as made considered to be in X’s best interests were the subject of challenge on appeal.
The mother’s proposed Notice of Appeal was filed together with an Application in an Appeal on 22 January 2022, being two weeks after the time limit prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) for the filing of the Notice of Appeal had expired. The mother by her Application in an Appeal sought an extension of time to appeal from the order of the primary judge pursuant to r 15.06 of the Rules.
The mother did not name the Minister as a party to the appeal by way of her proposed Notice of Appeal or Application in an Appeal. The Minister did not appear before the appeal judicial registrar when the application for an extension of time was heard on 14 February 2022. Such extension was granted by an appeal judicial registrar on 15 February 2022, and the mother then filed her Notice of Appeal on 22 February 2022.
On 26 April 2022 the mother filed a further Application in an Appeal seeking an order that the Minister be joined as a party to the appeal pursuant to r 3.03 of the Rules. That application was resisted by the Minister. It came before Austin J on 17 May 2022. His Honour confirmed that the relevant rule did not empower this Court to compel a party’s joinder to the appeal and hence the mother’s application for a coercive joinder on the premise of that rule was misconceived. An order was made permitting the mother to file an Amended Notice of Appeal joining the Minister to the appeal within seven days of the date of the order. She did so on 23 May 2022.
The mother agreed that she had not at any time sought to appeal from the dismissal of her application for an injunctive order sought against herself.
Each of the father and the Independent Children’s Lawyer filed Submitting Notices, on 18 May 2022 and 27 April 2022 respectively.
Competency of the appeal
As recorded above, other than dismissing the mother’s application for an injunctive order as sought against herself, the balance of the effect of the order being the subject of the appeal was to dismiss the mother’s oral joinder application and oral application for leave to amend her Initiating Application made on the last day of the trial.
It was agreed by all parties and the Minister before the primary judge that the determination of the mother’s application for leave to join the Minister and for leave to amend her relief to restrain the Minister would rise and fall on the merits of her substantive relief sought against the Minister. The primary judge’s decision to refuse the joinder of the Minister and the leave to amend was grounded from her finding that, in Pt VII proceedings as between the parents of X, the Court does not have jurisdiction or power to order an injunction restraining the Minister in the terms sought by the mother. That finding was made consistently with High Court authority (see Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at [39] and [52]), authority of the Full Court of the Family Court (see for example, KN and SD and Secretary, Department of Immigration & Multicultural & Indigenous Affairs (2003) FLC 93-148), and authority of the Federal Court (see SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207).
It was accepted that the mother’s Notice of Appeal and any amendments thereto would be determined pursuant to the provisions of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”).
This is an appeal from a judge exercising jurisdiction in the Federal Circuit and Family Court of Australia (Division 1), and hence s 26(1)(b) of the FCFCOA Act applies:
Appeals generally
(1)Subject to section 28, the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction to hear and determine appeals from:
…
(b)a judgment of the Federal Circuit and Family Court of Australia (Division 1) exercising original jurisdiction…
Although it was not identified by either the mother or the Minister at any time prior to the hearing of the appeal, s 26(2) of the FCFCOA Act provides:
Certain kinds of appeals prohibited
(2)An appeal must not be brought from a judgment referred to in subsection (1) if the judgment is:
…
(b)a decision to do, or not to do, any of the following:
(i) join or remove a party.
Section 26(2)(b)(i) of the FCFCOA Act is cast in mandatory language. Upon it being raised by the Court with the parties on the hearing of the appeal, it was agreed that having regard to the legislative mandate, a preliminary issue for determination ought to be whether the appeal was competent.
The parameters of the joinder issue were set by the parties at trial and were identified by the primary judge in her reasons:
11.The mother now seeks that the Court make an order to restrain her from relocating from Australia until X’s 18th birthday; she also seeks that the Minister be joined to the proceedings and that the Court make an order restraining the Minister from revoking or cancelling her visa and those of X’s sisters – albeit that, after submissions were made by Counsel for the Minister about the effect of the Minister giving the mother and [X’s sisters] a notice in the terms noted in paragraph [8] above, Counsel for the mother intimated that the terms of the injunctions sought should be considered to include this action as well. I have proceeded on this basis.
12.The Minister opposed being joined to the parenting proceedings between X’s parents – proceedings which I consider are in existence only because of the prospect that the Minister might give the mother and X’s sisters the notice referred to above and thereafter act to remove them from Australia – on the basis that this Court does not have jurisdiction and, if it does have jurisdiction does not have the power, to make the orders sought by the mother insofar as the Minister is concerned.
In attempting to circumvent the terms of s 26(2)(b)(i) of the FCFCOA Act the mother argued that there were two limbs of the dismissal order that were “separate and distinct”, such that the refusal to join the Minister had no effect on the primary judge’s determination as to the injunctive relief and that the primary judge at trial ought to have made the injunctive order as sought restraining the Minister as a non-party.
We do not accept that contention. The grounds contained in the Amended Notice of Appeal do not make out a challenge by way of an error of law of the primary judge’s determination as to the joinder, or a challenge as to a failure of the primary judge to deal with an identified dispute at trial. The mother did not take us to anywhere in the proceedings before the primary judge where the mother prosecuted injunctive relief restraining the Minister on the basis that:
(a)the Minister was not a party to the proceedings; or in the alternative,
(b)in the event the joinder application was refused, that the injunctive relief would be prosecuted in the absence of the Minister as a party.
It is self-evident that had the mother prosecuted injunctive relief against the Minister as a
non-party at the trial, her oral application for joinder was, on one view, otiose. As such proposition could have been the subject of the mother’s case at trial, it is now too late to raise the issue (see Metwally v University of Wollongong (1985) 60 ALR 68 at 71).
The Minister at the hearing of the appeal conceded that the appeal was not competent.
The appeal is from the refusal to order the joinder of the Minister. Such appeal is prohibited by the operation of s 26(2)(b)(i) of the FCFCOA Act. It must be dismissed as incompetent at law.
THE COSTS APPLICATION
The Minister sought an order for her costs of the appeal.
While the default position established by s 117(1) of the Act is that each party should bear their own costs, s 117(2) permits the Court to make such costs order as it considers just if there are circumstances which justify doing so. Section 117(2A) then lists considerations which the Court must have regard to in determining whether to make a costs order.
By reference to such of those matters that are relevant and engaged here, the Minister submitted that the mother, being unsatisfied with the outcome at first instance, initiated the appeal presumably conscious of the risks of a costs order against her if she failed. The Minister further submitted that the mother has been wholly unsuccessful in the appeal. The Minister identified that upon the parties being appraised of the plain and unequivocal language used in s 26(2), the mother continued to seek to prosecute the appeal. Each circumstance, either solely or by accumulation, was contended to justify an order for costs in favour of the Minister.
The appeal was determined on a basis not identified by either the mother or the Minister. It was open for the Minister to raise the s 26(2) challenge at the hearing before Austin J on
17 May 2022. The Minister did not. Similarly the Minister could have, but failed to, make an application for a summary determination of the appeal on a question of law. Each scales against an exercise of discretion in favour of the Minister’s application as to costs.
Weighing those matters in the balance, we were satisfied that the circumstances do not justify an order for costs in this matter, and hence dismissed the application by the Minister for costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Jarrett & Campton. Associate:
Dated: 12 July 2022
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