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Mother Seeks Joinder of Minister in Appeal

Hernandez & Cranage [2022] FedCFamC1A 68 (17 May 2022)

The mother sought for the Minister to be restrained from cancelling her and her child's bridging visa.  The primary judge reasoned no such order could or should be made and dismissed all outstanding applications by the mother. 

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.  The Court, in adjudicating this dispute, determined if the Rules does empower the Court to compel a party’s joinder to proceedings in either its appellate or original jurisdiction.

Facts:

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.

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.  The mother's application was for an order in these terms "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."

The primary judge reasoned no such order could or should be made and dismissed all outstanding applications.  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.  The mother filed an Application in an Appeal seeking an order in these terms: "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."

Issue:

Whether or not the orders sought by the mother should be granted. 

Applicable law:

Family Law Act 1975 (Cth) Pt VII - relied upon by the mother in submitting that 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, should be 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.

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32 -  empowers the Court to order the joinder of a party to an appeal.
 
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.03 - provides that 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.

Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365[2004] HCA 20 - relied upon in holding that 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.

Analysis:

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.  In the absence of any application by the Minister to intervene in the appeal, the proper course open to the mother is to file an Amended Notice of Appeal naming the Minister as a respondent to the appeal.  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.

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: "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."

Conclusion:

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

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