Moss & Moss

Case [2025] FedCFamC1F 135

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Moss & Moss [2025] FedCFamC1F 135

File number(s): BRC 5460 of 2020
Judgment of: BRASCH J
Date of judgment: 28 February 2025
Catchwords:

FAMILY LAW - PRACTICE AND PROCEDURE  – Where the mother applied to adjourn the trial as Counsel was not available for personal reasons – Where trial is in a month’s time – Where no absolute right to the legal adviser of a party's choice - Where time to find alternate counsel - Where if trial was adjourned, it could not be heard for another 12 months – Where the serious allegations made by each parent against the other need to be ventilated, tested and a best interests determination made sooner rather than later – No prejudice to mother in seeking different counsel – Application dismissed

FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother asks the court to request the department intervene under s 91B of the Act – Where matters relied upon by mother to support the request are dated – Where mother says “we need to know their position” – Where court not bound by any position the department may have – Where no child protection orders have been made and no engagement of s 69ZK of the Act –Where mother could issue subpoena – Where no utility in department being a party – Where no orders sought by anyone which might involve the department - Where timely determination of the children’s best interests far outweighs the delay that would be caused by making the request and waiting for the department to respond – Application dismissed

Legislation:

Evidence Act 1995 (Cth) s 144

Family Law Act 1975 (Cth) Pt VII, s 69ZK and 91B

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 67, 68, 68(1)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.01, 3.02, 3.03, 8.15(3), 12.06(3), 12.06(7)

Bar Association of Queensland, Barristers Conduct Rules (at 27 September 2024) r 105

Cases cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Calder & Andrews [2016] FamCA 54

Earp Woodcock Beverage & Co Ltd v Gordon (1927) 44 WN (NSW) 123

Emms & Emms [2025] FedCFamC1A 21

Grimwade v Meagher [1995] 1 VR 446

Haset Sali v SPC Ltd (1993) 116 ALR 625; [1993] HCA 47

Panelli & Panelli [2022] FedCFamC1F 652

Re K (1994) FLC 92-461

Robert Giarrusso and Transport Union Workers of Australia v Ampol Petroleum (Vic) Pty Ltd [1994] IRCA 123

Secretary of the Department of Health and Human Services & Ray and Ors (2010) 247 FLR 455; [2010] FamCAFC 258

Secretary, Department of Communities and Justice & Opunui (2021) 64 Fam LR 426; [2021] FedCFamC1A 41

Squire v Rogers (1979) 27 ALR 330

Western Australia v Ben Ward & Ors (1997) 76 FCR 492
Division: Division 1 First Instance
Number of paragraphs: 75
Date of hearing: 28 February 2025
Place: Brisbane…

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AGLC
Moss & Moss [2025] FedCFamC1F 135
Case
[2025] FedCFamC1F 135
Decision Date

CaseChat Overview and Summary

In the matter of Moss & Moss, the mother sought to adjourn the trial due to her counsel being unavailable for personal reasons. The trial was scheduled to take place in a month's time. The legal issues before the court were whether there was an absolute right to choose one's legal adviser and whether there was sufficient time to find alternative counsel. The court noted that while there is no absolute right to a party's chosen legal adviser, the urgency of the case necessitated that the serious allegations made by each parent against the other be ventilated, tested, and resolved in a timely manner. Given that the trial could not be held for another 12 months if adjourned, the court found no prejudice to the mother in seeking different counsel and dismissed the application to adjourn. The court also considered the mother's request for the department to intervene under section 91B of the Act, which was dismissed as there were no child protection orders in place, and no utility in the department being a party. The court found that the timely determination of the children's best interests outweighed any delay caused by the department's potential response.

The court dismissed the mother's application to adjourn the trial and her request for the department to intervene under section 91B of the Act. The court held that there was no absolute right to a party's chosen legal adviser and that the urgency of the case necessitated timely resolution of the serious allegations made by each parent against the other. The court found that there was no prejudice to the mother in seeking different counsel and that the timely determination of the children's best interests outweighed any delay caused by the department's potential response. The court also noted that the mother's matters relied upon to support her request were dated, and that the court was not bound by any position the department may have. The mother could issue a subpoena if necessary. The court concluded that there was no utility in the department being a party and that there were no orders sought by anyone which might involve the department.

Orders

Orders of the court

BRC 5460 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MOSS

Applicant

AND:

MR MOSS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BRASCH J

DATE OF ORDER:

28 FEBRUARY 2025

THE COURT ORDERS THAT:

1. The mother’s Amended Application in a Proceeding filed 26 February 2025 is dismissed.

2. The mother is to comply with r 12.06(7) and file costs notice within three (3) days of the date of this order.

AND THE COURT NOTES THAT:

A. The father initially sought his costs, but ultimately decided to consider filing an application under the relevant rules, if cost effective.

B. Neither the mother's legal representative nor the Independent Children’s Lawyer opposed the approach to costs in Notation A.

C. The annexures to the affidavit of Mr C filed 24 February 2025 have been marked as Exhibit 1 in these proceedings.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

I will deal with those two parts in turn. Background The parties met in late 2010 and commenced cohabitation in mid-2011. They married in late 2012 and separated on 12 December 2019. They were divorced in early 2023. An earlier parenting dispute was finalised by a different Justice on 22 February 2022 by way of Final Consent Orders. The mother was represented by a Silk ("Counsel 1"). The Consent Orders provided, in summary, for: equal shared parental responsibility (as it was then); the children to live with the mother; spend graduated, increasing time with the father culminating in alternate weekends; and, half school holidays in blocks. The time was to be supervised by either of the paternal grandparents until the commencement of Term 1 in 2024. On 21 January 2023, the mother ceased the children's court ordered time with the father; she would say she did so to act protectively. Proceedings were then recommenced by the mother on 10 February 2023 wherein she sought orders that the children not spend time or communicate with the father, and that the time-with orders in the 2022 Consent Orders be stayed. On 21 February 2023, she filed an amended moving document adding some details to the form. The mother makes serious allegations that the children have been sexually assaulted by the father, and, that the paternal grandparents (or either of them) have sexually abused the children or permitted/facilitated abuse occurring. I take that from the issues that were set out in the orders of Judicial Registrar Brooks. It is agreed that there is no court order where the children's time with the father was suspended, or the 2022 Consent Orders stayed. Nevertheless, it is also agreed the children have not spent time with the father pursuant to those orders for more than two years. In late 2023, the matter was transferred to the Federal Circuit and Family Court of Australia Division 1, and on 13 March 2024 the matter was designated as Magellan. On 22 April 2022, the matter was again in court, with the mother represented by a different Counsel ("Counsel 2"). The following was noted in the orders:A. This matter was previously finalised [by] Justice Howard in February 2022 where similar allegations were made by the mother against the father....C. The parties advise the issues that require judicial determination are likely to include:(a)Whether the father is an unacceptable risk of harm to the children arising from allegations he has sexually abused both children.(b)Whether the paternal grandparents or either of them are an unacceptable risk of harm to the children arising from allegations they have sexually abused the children or permitted/facilitated abuse occurring;(c)Whether the mother is an unacceptable risk of emotional or psychological harm to the children arising from allegations that she has:(i)fabricated allegations of sexual abuse by the father and the paternal grandmother;(ii)influenced the children to make false disclosures of alleged sexual abuse; and(iii)overtly or inadvertently undermined the father’s relationship with the children;(d)Whether the mother has the capacity to support a relationship between the children and the father; and(e) Whether the parents have any capacity to co-parent the children....

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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