FAMILY LAW – PRACTICE AND PROCEDURE –Joinder of parties –– Statutory interpretation – Rule 6.03(2) and (3)(b) of the Family Law Rules 2004 (Cth) – Where Wife joins third parties by filing Amended Initiating Application pursuant to Rule 6.03(3)(2) – Where no compliance with Rule 6.03(3) – Whether joinder of third parties pursuant to Rule 6.03(2) was a “nullity” – Whether affidavit required by Rule 6.03(3)(a) is “mandatory” – Rules to be construed consistently with the main purpose in Rule 1.04 – Consideration of Rules 6.02, 6.03, 6.04, 11.10.
FAMILY LAW – PRACTICE AND PROCEDURE – Statutory interpretation – Consequences of non-compliance with Rule 6.03 – Whether the third parties should be removed from the proceedings pursuant to Rule 6.04 – Summary dismissal – Whether proceedings against third parties should be dismissed pursuant to Rule 11.02(2) – Consideration of Rules 10.12 and 11.02(2) – Whether relevant to consider prospects of success – Discretion to dispense with the requirements of rule 6.03 nunc pro tunc – Application dismissed – Costs reserved.
Legislation:
Family Law Act (1975) Cth s 106B
Family Law Rules 2004 (Cth) rr 1.04, 1.06,1.07, 6.02, 6.03,6.04, 10.12, 11.02, 11.10.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Stopford Malloy & Malloy [2021] FamCA 100
Case
[2021] FamCA 100
Decision Date
CaseChat Overview and Summary
In the matter of DD Pty Ltd and Mr Q Malloy and The Malloy Group (applicants) against Ms Stopford Malloy (respondent), Harper J of the Federal Circuit and Family Court of Australia considered an application concerning the joinder of third parties to family law proceedings. The wife had sought to join third parties by filing an Amended Initiating Application, but it was contended that this joinder did not comply with the requirements of Rule 6.03(3) of the Family Law Rules 2004 (Cth).
The central legal issues before the court were whether the joinder of the third parties, effected without strict adherence to Rule 6.03(3), was a nullity, and whether the affidavit required by Rule 6.03(3)(a) was mandatory. The court also had to determine the consequences of any non-compliance, specifically whether the third parties should be removed from the proceedings under Rule 6.04 or whether the proceedings against them should be summarily dismissed pursuant to Rule 11.02(2).
Harper J reasoned that the Family Law Rules should be construed consistently with their main purpose as outlined in Rule 1.04. The court considered the interplay between Rules 6.02, 6.03, 6.04, and 11.02(2). His Honour determined that the requirements of Rule 6.03(3) could be dispensed with *nunc pro tunc*, meaning the court had the discretion to validate the joinder retrospectively. Consequently, the application to remove the third parties or dismiss the proceedings against them was dismissed.
The court ordered that the requirements of Rule 6.03(3) of the Family Law Rules 2004 (Cth) be dispensed with *nunc pro tunc* in relation to the Amended Initiating Application filed on 10 April 2019. The application filed by the respondents seeking dismissal of the proceedings against the third parties was dismissed, and all questions of costs related to that application were reserved.
Orders
Orders of the court
ADC2595/2015
BETWEEN:
DD PTY LTD (ACN … )
First Applicant
MR Q MALLOY
Second Applicant
THE MALLOY GROUP
Third Applicant
AND:
MS STOPFORD MALLOY
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
8 MARCH 2021
THE COURT ORDERS THAT:
1. The requirements of Rule 6.03(3) of the Family Law Rules 2004 (Cth) be dispensed with nunc pro tunc in relation to the Amended Initiating Application filed on 10 April 2019.
2. The Application in a Case filed on 28 August 2020 by the Second to Fourth Respondents be dismissed.
3. All questions of costs of and incidental to the Application in a Case filed on 28 August 2020 be reserved.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).