Moss & Moss
[2025] FedCFamC1F 135
•28 February 2025
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 (via Microsoft Teams) Solicitor for the Applicant: Mr M. Stone, Family Law Solicitors Qld Solicitor for the Respondent: Mr S. Kolo, Best Wilson Buckley Family Law Solicitor appearing as the Independent Children's Lawyer: Ms K. Hawdon, Forest Glen Lawyers ORDERS
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Moss & Moss has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
These are my Ex Tempore reasons which I will revise to make the spoken word more amenable to reading.
This is a parenting matter which involves two children, X born 2017 and Y born 2020.
It is common ground that they have not seen their father since January 2023.
On 24 February 2025, four days ago, the mother filed an Application in a Proceeding, which is in two parts.
First, she asks that the trial, which is listed in just short of a month’s time, be adjourned for personal reasons to do with her counsel.
Second was a plainly wrongheaded application asking that the Department of Families, Seniors, Disability Services and Child Safety (“the department”) be joined to the proceedings. With respect to that proposed order, the following Notation was made to the listing order dated 25 February 2025:
A.The Court will expect submissions from the applicant mother with respect to what jurisdiction and/or power it has to order the Department of Families, Seniors, Disability Services and Child Safety to do as sought, with those submissions to engage with:
a. Section 91B of the Family Law Act 1975 (Cth), which is caged in terms of a request; and
b. The Full Court decision in Secretary of the Department of Health and Human Services & Ray and Ors [2010] FamCAFC 258 where it determined there is no such power to do so under Part VII of the Family Law Act 1975 (Cth) or under the accrued jurisdiction of the Family Court (see also Secretary, Department of Communities and Justice & Opunui [2021] FedCFamC1A 41 at [61]).
The mother's application was subsequently amended and filed on 26 February 2025, asking that the department be requested to intervene, as are the terms of s 91B of the Family Law Act 1975 (Cth) ("the Act”).
The father opposes both orders. The Independent Children's Lawyer ("ICL") does too.
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.
...
The matter came before me to make trial directions on 24 September 2024 and was set down for trial for four to five days commencing 24 March 2025. That is, the trial dates have been long known, and they are fixed dates. Different counsel appeared for the mother at that time ("Counsel 3").
The father seeks orders by his Response filed 24 April 2024 that the children live with him. In short, his case is that the mother has fabricated the sexual abuse allegations or has influenced the children to make false disclosures. The Notation extracted just above indicates he says he faced similar allegations in the proceedings that ended with the 2022 Final Consent Orders.
Material
The mother's Outline lists the following material:
(a)Orders of 25 February 2025;
(b)Orders of 24 September 2024;
(c)Initiating Application (Family Law) filed 10 February 2023;
(d)Amended Initiating Application (Family Law) filed 21 February 2023;
(e)Application in a Proceeding filed 25 February 2025;
(f)Amended Application in a Proceeding (filed by leave); and
(g)Affidavit of Mr C (a law clerk) filed 24 February 2025.
Noting that leave was also granted for these documents, the father read:
(a)Response to an Application in Proceeding filed 27 February 2025; and
(b)Affidavit in support filed 27 February 2025.
Consistent with r 8.15(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") I have marked the annexures to the affidavit of the law clerk as Exhibit 1.
The application concerning Counsel 3
The affidavit supporting the Amended Application in a Proceeding has been sworn by a law clerk, not the mother. I do not know why she could not go into evidence to support her application.
In any event, an email attached to the affidavit, dated 7 February 2025, says this:
We refer to the above and advise [Counsel 3] has indicated he is not able to attend the trial in this matter.
He only late last year suffered the loss of his wife […] and he has indicated in the short term he is not able to attend to this trial scheduled in March.
We submit it would not be best for our firm to attempt to re-instruct another counsel at such a late stage and our client would not be able to afford the cost of re-instructing new counsel on an urgent basis.
He does feel confident he would be able to attend the child delayed for a period to allow him to recover.
Respectfully, I am not terribly interested in what may be "best for our firm". I am more interested in doing justice between the parties and ultimately, making orders that are in the children's best interests.
All parties and the court have great sympathy for Counsel 3, but that is not the measure by which I assess this application to adjourn.
The email of 7 February 2025 then set out very specific dates where Counsel 3 is said to be available starting 1 May 2025. I pause to observe that it is said Counsel 3 is not able to appear at the trial at the end of March 2025 but is confident he will be recovered about four and a half weeks later by 1 May 2025.
I also observe the solicitor's letter, with its specific dates for Counsel 3's availability in May 2025, presumes the court would have a range of available dates that month.
The court does not.
More fundamentally, at least from 7 February 2025, Counsel 3 knew he was unable to attend the trial on the long-given and fixed dates. That unavailability brings with it certain obligations set out in the Bar Association of Queensland, Barristers Conduct Rules (at 27 September 2024) ("the Bar Rules"):
105. A barrister must promptly inform the instructing solicitor or the client as soon as the barrister has reasonable grounds to believe that there is a real possibility that the barrister will be unable to appear or to do the work required by the brief in the time stipulated by the brief or within a reasonable time if no time has been stipulated.
This rule sits under the heading "Briefs which may be refused or returned". I will work on the basis that Counsel 3, an officer of the court, "promptly" informed the solicitor. However, the point of this rule is to try and keep hearing dates and to retain different counsel. Plainly, the mother prefers Counsel 3 keep the brief and asks for a trial date that better suits Counsel 3.
In seeking this indulgence, the mother makes no offer of meeting either the ICL's or father's costs thrown away if her application to adjourn was granted.
It has long been accepted that there is a public interest in a litigant not being deprived of their counsel of choice "without good cause. The right to the choice of one's counsel is an important value. But it is not an absolute ..." (Grimwade v Meagher [1995] 1 VR 446 at 450). See also the useful discussion in Western Australia v Ben Ward & Ors (1997) 76 FCR 492 at 498 that:
In Kooky Garments Ltd v Charlton [1994] 1 NZLR 587 at 590 Thomas J noted that the general right of a party to be represented by the counsel or solicitor of its choice must give way to the overriding principle of protecting the integrity of the judicial process. See also Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446.
Enough has been said to show that the requirements of natural justice do not involve an absolute right to the legal adviser of a party's choice.
The mother's application however is not like the many authorities on the topic of counsel of choice, which often arise in the context of applications to restrain the retention of specific legal representatives where it is said there is a conflict of interest. That is not the case here.
This is also not a case where an adjournment is granted because a witness or counsel has fallen ill during or on the eve of trial; see for example Earp Woodcock Beverage & Co Ltd v Gordon (1927) 44 WN (NSW) 123 per Harvey CJ in equity.
Instead, the mother proposes this long-set down trial, on fixed dates, be adjourned to allow for Counsel 3's recovery. As sympathetic as I am to Counsel 3's personal plight, the mother's application does not sit well with protecting the integrity of the justice system, the due administration of justice, or the spirit of r 105 of the Bar Rules to which I have just referred.
Further, in Haset Sali v SPC Ltd (1993) 116 ALR 625 ("Haset Sali"), a case concerning whether a refusal to grant an adjournment amounted to a miscarriage of justice,[1] Brennan, Deane and McHugh JJ held:
11.In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties. As Deane J pointed out in Squire v. Rogers ((4) [1979] FCA 48; (1979) 27 ALR 330, at p.337.) this "may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing". What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.
…
13. In his judgment, Marks J noted that the appeal had been fixed for a period of two or three days and that the Court had not fixed any other case to be heard that week. He said that the only basis for the adjournment was the "inability on the part of the appellant to obtain the services of senior counsel". He said that it was not apparent on the face of the judgment of the trial judge that the appeal would require lengthy preparation to present the argument. The appellant had had much longer than a weekend to ensure that counsel would be available to argue the appeal. His Honour referred to the attempt to re-fix the hearing in February and that senior counsel had required "three months' notice of an engagement". His Honour said that "(w)e have no reason to believe that that is a universal practice or rule adopted by other members of the Bar." Marks J said that it was a long-standing practice of the Court that, while it would do its best to meet the convenience of counsel, it would not delay access to the courts by other litigants by putting off hearings in the way the Court was asked to do in this case.
(emphasis added)
[1] But for the present parenting case see s 26 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) re appeals not being permitted from decisions granting or not granting adjournments.
Such is the gravity of the allegations made by both parties in this matter, I have no other trial listed in the week of 24 March 2025 when this trial has been set down to occur.
Toohey and Gaudron JJ expressed similar principles in Haset Sali:
23.The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard. Because these considerations are singularly within the knowledge of the court to which an application for an adjournment is made, there is an added reason why this Court should not interfere with a decision made on such an application.
24.Having regard to these matters, it is clear that the Full Court's decision to refuse an adjournment for two weeks was correct.
The court's resources and needs of other litigants was made plain in the more recent decision of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
Presciently, although not binding authority on me, the following was said in Robert Giarrusso and Transport Union Workers of Australia v Ampol Petroleum (Vic) Pty Ltd [1994] IRCA 123, with respect to an application for an adjournment:
Having said that, the court looks at the grounds for adjournment which, in descending order of importance, are (1) discovery and access to documents said to be crucial to the applicant’s case, (2) availability of a psychologist to give expert evidence, (3) unavailability of the barrister initially briefed by the applicants or, it is said, unavailability of appropriately experienced alternative counsel. The third ground is given least weight by the applicants. It is rejected immediately. Counsel took a brief and then became unavailable. There are other fish in the sea even at this late stage.
(emphasis added)
The father deposes his counsel was unavailable for the trial dates - he briefed elsewhere and found "other fish in the sea".
The question then is whether there is “good cause” for the mother to be denied the counsel of her choice for a trial in a month's time, with Counsel 3 becoming unavailable due to sad, personal circumstances. In answer to that question, what emerges from the aforementioned cases is the need to engage in a balancing of competing interests. On one hand, there is the mother's preference to retain Counsel 3 and the trial be adjourned to allow that. On the other hand, the father opposes the adjournment and wishes the trial to proceed where he faces serious allegations of sexual abuse against the children and, indeed, makes serious allegations against the mother with which she too must deal.
Most importantly, the children's best interests require resolution of the serious allegations made by each party. As was appropriately and wisely accepted by the mother's solicitor, that can only occur at a trial.
Then there are other litigants who could have had those four to five days of trial at the end of March 2025, but it is too late now to try and list something else in that week and would be a use of precious court resources calling on matters in the hope a matter could be found to take the dates. That would also cost those other parties money if legally represented. Equally, if this matter is adjourned, it will then prevent other matters being heard on the new dates sometime next year.
Further, I do not have four to five days for a trial until next year, being 2026, which does not bode well for determining these serious allegations and making a best interests decision for the children. I do not know now what the final orders may be; they may be no time orders, or they may be a change of residence, or they may be something else. That is the raison d'être of having a trial to work out what is in these children's best interests.
To that end, it has long been held that the children's best interests prevail over any perceived prejudice to a party (Re K (1994) FLC 92-461 at [80,765]).
Sections 67 and 68 of the FCFCOA Act speak to the overarching purpose of civil practice and include facilitating the just resolution of disputes according to law and "as quickly, inexpensively and efficiently as possible". Those principles also refer to the efficient disposal of the court's caseload and the efficient use of judicial resources. Section 68 imposes obligations on lawyers to take account of the duties in s 68(1) to conduct litigation that is consistent with the overarching purpose (i.e. s 67) and to assist the party to comply with the duty.
It is difficult to see how the mother's application fits within that overarching purpose.
Indeed, the mother has known since at least 7 February 2025 that Counsel 3 was in difficulty but only now, late February 2025, brings the application to adjourn the trial. She has had almost a month from 7 February to now, to secure alternate counsel. She still has almost a month between now and the fixed trial dates to obtain alternate counsel. She has obviously briefed other counsel in the past and will need to do so again.
It has long been held that legal representation "is a privilege, not a right and there are many people in this community who have to proceed on the basis that they have to do the best they can obviously with the assistance of the court" (Calder & Andrews [2016] FamCA 54 at [3]). But there is no suggestion that the mother will be without representation. Her complaint is simply that her solicitors do not think it would "be best for our firm to attempt to re-instruct another counsel at such a late stage and our client would not be able to afford the cost of re-instructing new counsel on an urgent basis"
I have already said I am not interested in what is "best for our firm", and I do not consider this to be "at such a late stage". I also do not consider instructing new counsel will be on "an urgent basis". To labour the point, the trial is almost a month away and the mother is on, at least, her third counsel.
With the greatest respect to Counsel 3, I am not convinced that he is the only barrister at the private referral bar in Brisbane able to present her case. The family law bar in Queensland is a strong and vibrant body of advocates, which is something I take notice of under s 144 of the Evidence Act 1995 (Cth). There is no evidence before me that the mother's solicitors made any inquiries of alternate counsel prior to, on or after 7 February 2025 when Counsel 3's position came to light. I am satisfied that the mother will be able to find alternate counsel for a trial, which is about a month away.
It is said in the letter I referred to, that the mother cannot afford to re-brief - yet she has done so in the past and in any event, that is a bald assertion in an email attached to the law clerk's affidavit, which is now part of Exhibit 1. The mother does not depose to this herself. I give that bald assertion little weight. Saving costs was also a reason to find alternate counsel as quickly as possible when Counsel 3 said he was indisposed. The mother will also likely have incurred some additional costs in bringing this application, when those costs may otherwise have been put towards securing alternate counsel. The mother has not favoured the court with a Costs Notice as required by per r 12.06(3) of the Rules. I will order that she comply with r 12.06(7). The father has [complied], although it is not clear to me what he has spent on resisting this application.
With a month out from trial, I see no prejudice to the mother in proceeding with the matter and for her having to change counsel as she has done at least three times in the past. Moreso, these children need all competing allegations to be ventilated, tested and findings made whatever way the evidence ultimately unfolds.
For those reasons the application to adjourn the trial is dismissed and the trial will proceed on 24 March 2025, being the fixed dates that were set down in September 2024.
Joining / requesting Child Safety become involved
I now turn to the second aspect of the application. It started as an application to join the department pursuant to r 3.03 of the Rules. That was an incompetent application for failing to engage with s 91B of the Act, which speaks of a request. I have already referred to the Notations made in the order listing the hearing of the mother's Application in a Proceeding and subsequent amendment to the mother's Application in a Proceeding.
The basis for the request is set out in an annexure to the law clerk's affidavit supporting the application that is now part of Exhibit 1. It is a letter to the other parties dated 17 February 2025.
Why it has taken so long for the applicant's solicitor to ponder this is a mystery. When the matter was before me in September 2024, there was no suggestion from Counsel 3 that such a request ought be considered.
The said letter asks whether the recipients (that is the ICL and the father's solicitor) have considered joining the department to the proceedings "given their initial requirement that [Mr Moss] left the premises due to the concerns raised by the mother". I am told that was in 2020. The solicitor then drew attention to the affidavit of a witness in the mother's case where she deposed to a conversation the witness had with an officer of the department in January 2023. Again, that is some time ago, but the request is only being proposed now.
The letter also refers to a number of paragraphs in the mother's affidavit and asserts the father acted contrary to a Safety and Support Plan made in March 2020 - almost 5 years ago, but the application to request the department intervene is only now being agitated.
The references to the specific paragraphs in the two affidavits referred to in the letter add no meaning to this application as they were not read in the mother's case today. They are thus extraneous material for current purposes, and I cannot have regard to them (Emms & Emms [2025] FedCFamC1A 21).
Doing the best I can, what is set out in the mother's solicitor's letter is that they are essentially looking for the department to intervene so it can put on evidence sought by the mother. Respectfully, that is a non sequitur. It is open to the mother to issue subpoena to the appropriate officers from the department, either for documents or to give viva voce evidence. It would then be a matter for the department whether they object to any such subpoena, or not.
It was also said in submissions [by the mother's solicitor] that "we need to know their position". Part VII of the Act trials happen in multiple courts around Australia every single day without “knowing” the department's position. I am not bound by any position they may have. There is no evidence before me that the department has sought to involve itself, either in earlier litigation or this litigation seeking to intervene. There is no evidence that s 69ZK of the Act has been engaged; that provision is to the effect that if a child welfare order is made, then in certain circumstances, that can essentially stay proceedings in this court. That has not occurred. There is no evidence before me of any child protection orders.
I do not understand why the department would have to be a party (if they even acceded to such a request) when the evidence the mother seems to want to rely upon can come to the court via subpoena if not successfully objected to (if objection was taken) and if in admissible form.
A submission was made by the applicant's solicitor that they will issue a subpoena if this application fails. That highlights the options that are available [to the mother] with respect to the department falling well short of the department being asked to intervene.
And even if the department intervened, they would not have to file any material if they chose not to, which would defeat the mother's aspirations. Nor would they have to produce the officer sought by the mother if they chose not to conduct the litigation in that way. I also do not see how they would be a necessary party within the Rules; see rr 3.01 and 3.02.
Further, if I made the request, the trial would be adjourned for the Minister/delegate to consider the request, which could take some time. Adopting my reasons on the adjournment application, these children need the evidence to be tested, and best interest orders made for their benefit.
I do not understand what utility the department would serve. As was said in Panelli & Panelli [2022] FedCFamC1F 652 at [151]:
I do not accept the proposition that the Court is not in a position to know what outcome is in the best interests of the children in this case. In proceedings under Part VII, unlike civil litigation based on causes of action for the enforcement of rights, parents do not prove a case to enforce their rights; “Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests”: per Austin J in Fitzwater & Fitzwater [2019] FamCAFC 251; (2019) 60 Fam LR 212 at [134]; CDJ v VAJ (1998) 197 CLR 172 at [64].
Both parties have filed their Evidence-in-Chief and witness affidavits. I have the benefit of family reports and a psychiatric assessment. In other words, they have each filed evidence and set out what orders they contend are in the child's best interest. The department was involved with the family but have not sought to intervene.
This matter has the benefit of a highly competent Independent Children's Lawyer. Respectfully, I do not see how the department would add anything.
Moreso, there is much force in what was said by the ICL in response to the mother's solicitor's letter about joining the department. The ICL's reply, dated 18 February 2025, says:
It is our practice to only join the department pursuant to a 91B Order when it is apparent that there is no parent willing and able to protect the children. In your client’s case, she is able and willing. The court of its own motion can seek assistance from the co-located Child Safety Family Law team if considered appropriate.
The unfortunate word "join" needs to be read in conjunction with the then mentioned s 91B reference, which refers to a request. Nevertheless, the proposition as to why a request might be made (that is, no parent able and willing) is well made - on the father's case, he is able and willing. On the mother's case, she is. Moreso, no one seeks an order that the Director-General of the department be, say, allocated parental responsibility for major long-term decisions for the children. Indeed, no one seeks any orders that would involve the department at all.
For all these reasons, I cannot see the need or the utility in requesting the department to intervene. Whatever position they might have, is not something by which I am bound. The 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.
Accordingly, that aspect of the mother's application will also be dismissed.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 4 March 2025
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