By Karen Devey – Senior Associate
Usually, only a separated husband and wife, or former de facto partners are involved in family law court proceedings. However, sometimes others need to be joined as parties. They are often referred to as “third parties”.
Section 79(10)(b) of the Family Law Act 1975 (Cth) (Act) provides that “any other person whose interests would be affected by the making of the order” sought by the parties, is entitled to be joined as a party to family law proceedings in the Federal Circuit and Family Court of Australia.
Rule 3.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (Rules) states “A person whose rights may be directly affected by an issue in a proceeding, and whose participation as a party is necessary for the court to determine all issues in dispute in the proceeding, must be included as a party to the proceeding.”
The term “necessary” is not defined in the Act. However, in the matter of Wayne & Dillon & Anor [2008] FamCAFC 204, Justice Warnick in considering the definition of “necessary” stated that it
“…must mean something more than ‘useful’ or ‘expeditious.’ In my view, if there are available alternative means … of obtaining from a third person or someone already a party what is needed to allow an applicant for joinder to establish an identified “case,” joinder is unlikely to be necessary.
However, if a cause of action, recognisable at law, against a “third person” is particularised, that is at least highly likely that joinder will be “necessary for the court to completely and finally determine all matters in dispute…”
Who can be joined?
Identifying parties necessary to determine all issues in dispute is often straight forward.
In parenting proceedings:
- If the family of a separated couple includes step-children, they will need to include the biological parent in court proceedings for parenting orders.
- A person may have the care of a child whose parents have sadly passed away. An application for parenting orders may need to include relatives who have a relationship with the child.
In financial proceedings:
- If the husband asserts that a house registered in the name of the wife and her parents really belongs solely to the wife, the parents may need to be joined to the proceedings.
- If there is a significant creditor which may be affected by Court orders. Sometimes that may be the ATO.
This article looks at a situation where a party seeks to bring third parties into the proceedings. It does look at third parties making their own application to be joined, such as grandparents wanting to be involved in parenting proceedings.
How to join a third party to family law proceedings
The process to join a third party is set out in rule 3.03 of the Rules:
- When starting the proceeding (subrule (1)) a party to a proceeding may include any person as a party by:
- Naming the person as a party in the application, response or reply; and
- Serving on the person a copy of the application, response or reply and all other relevant documents filed in the proceedings.
2. After proceedings have been started (subrules (2) to (5)), a party to a proceeding may include any person as a party by:
- Amending the application or response to add the name of the party;
- Filing an affidavit setting out the facts relied on to support the addition of the new party, including a statement of the new party’s relationship (if any) to the other parties; and
- Serving on the person a copy of the application, amended application, response or amended response or reply, supporting Affidavit and all other relevant documents filed in the proceedings.
- If the first Court date has already taken place, an application in a proceeding seeking leave (permission from the court) is also required.
The Court’s decision to grant or refuse leave to join a party to proceedings cannot be appealed against.
Making, or responding to, an application to join a party to family law proceedings can be complex and involve risk.
If you are considering family law proceedings, or have received a court application, our experienced team of family lawyers can assist you.
