Stopford Malloy & Malloy

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.