Under the Family Law Act third parties can be joined to Court proceedings between separated couples, in disputes about both property division and parenting. “Joinder” is possible where it can be shown that the rights of that third party will be directly affected by an order sought in the proceedings, and where their participation is necessary for the Federal Circuit and Family Court of Australia to determine all issues in dispute.
Joinder of a third party can occur when a person or entity who feels that their rights will be affected by the family law dispute applies to the Court to be added to case, or where one of the parties to the relationship joins the third party to the Court case, even if that is without the third parties’ consent. Government Agencies such as the ATO, Child Support Registrar and Department of Communities and Justice can also be joined to family law cases in appropriate matters.
In a property division case, a third party is usually joined where a debt is owing to that third party which is at risk of not being paid without their involvement, or where the third party jointly owns property with one or both of the parties to the relationship and there is a dispute about what will happen to that asset in dividing assets between a separated couple. In a case involving children, a third party may be added where a grandparent or other family member is directly involved in the care of children and is seeking orders about their care.
Once a third party is joined to a family law case they have the same duties and obligations to file documents and provide disclosure records as the other parties to the case, but limited to the issues that concern them. Being involved as a third party in family law Court proceedings can be very expensive and harrowing, particularly where the third party is joined involuntarily. A third party has the right to say they don’t want to be heard in the case, but this is not always an option.
The Court has the authority to make an order that; deals with property held by a third party; restrains a third party from taking certain action, or grants an injunction against them, but only where the making of the order or injunction is reasonably necessary or appropriate to give effect to a division of property between parties to a marriage or de facto relationship, where an injunction is necessary to ensure the payment of a debt owing to a third party and where the Court considers that it is just or convenient to grant the injunction. The Court must consider the taxation effect of the order sought, the effect of the order on any social security entitlement and the costs that the third party will incur if such an order or injunction is made.
The Family Law Act endeavours to protects third parties by limiting the circumstances under which the Court can make an order or injunction that affects a third party, and by preventing a third party from being liable for any loss or damage suffered where they take action in reliance on an order made in family law proceedings. The Court has the power to make such orders for the payment of expenses or costs that a third party incurs where an injunction or order has been made against them as the Court considers necessary.
There can be very serious consequences for third parties and those that join them to family law proceedings, particularly in relation to legal costs. In Conrad & Anor & Conrad (2020) the Court found that where a non-party to a marriage is joined to proceedings and the action against them is wholly unsuccessful, in the ordinary course of things this will lead to an order for costs in favour of the non-party. However, whether or not an order for costs is made depends on the myriad factors taken into account in family law matters with respect to costs.
Before you consider joining a party to your family law dispute, or asking to join a family law case, please contact our office to make an appointment to speak with one of our dedicated family lawyers.
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