Mother Seeks to Join Minister in Proceedings
Hernandez & Cranage (No 2) [2022] FedCFamC1A 103 (12 July 2022)
The mother now 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. The Minister seeks costs of the appeal. The Court, in resolving this dispute, relied upon the Federal Circuit and Family Court of Australia Act 2021 (Cth).
Facts:
The mother and the father commenced a relationship in early 2008 and separated in May 2010. The father and mother are the parents of one child, X. Both the father and X are Australian citizens. The mother and X’s sisters are not. 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. 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 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.
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. 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.
Issue:
Whether or not the appeal should be granted.
Applicable law:
Family Law Act 1975 (Cth) Pt VII s 67ZC - provides that in addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.
Family Law Act 1975 (Cth) Pt VII, s 117 - provides that in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
Analysis:
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.
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 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.
Conclusion:
The Amended Notice of Appeal filed 23 May 2022 is dismissed. The second respondent’s application for costs is dismissed.
