Moss & Moss (No 2)

Case [2025] FedCFamC1F 510

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Moss & Moss (No 2) [2025] FedCFamC1F 510

File number(s): BRC 5460 of 2020
Judgment of: BRASCH J
Date of judgment: 31 July 2025
Catchwords:

FAMILY LAW – CHILDREN – Where the mother alleges the father and paternal grandmother have physically and sexually abused both children – Where the father denies all allegations – Where the evidence does not allow for a positive finding that any abuse occurred – Where the father does not pose an unacceptable risk of harm to the children – Where the children will grow up believing that they have been abused by the father if only exposed to the mother’s narrative – Where such an inaccurate belief is harmful to the children’s sense of self – Where the mother poses an unacceptable risk of harm to the children via her implacable beliefs and associated evidence collecting conduct – Where the father seeks a change of residence but does not have a clear plan for how the children will be supported through such a monumental change – Where the father made a late proposal for a period of supervised time in concert with therapeutic scaffolding to support the children seeing him – Orders made consistent with father’s late proposal

FAMILY LAW – STATUTORY INTERPRETATION – Whether Article 39 of the United Nations Convention on the Rights of the Child has any role to play in considering orders that promote a child’s safety, or deal with their welfare or development

FAMILY LAW – EVIDENCE – Where the paternal grandmother did not file an affidavit – Where she is accused of sexually abusing the children – Whether the ‘rule’ in Jones v Dunkel applies

FAMILY LAW – EVIDENCE – Where many particulars of allegations that fell from the mother in cross-examination were not put to the father – Whether the ‘rule’ in Browne & Dunn applies

Legislation:

Evidence Act 1995 (Cth) s 128 and 140

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 64B, 65D(1), 65DAB, 65DAAA, 65LA(5A)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15(3)

Bar Association of Queensland, Barristers’ Conduct Rules r 41

Explanatory Memorandum, Family Law Amendment Bill 2023

United Nations Convention on the Rights of the Child Article 39

Cases cited:

A v A (1998) FLC 92-800

Alam & Sayid [2021] FamCA 564

Bant & Clayton [2019] FamCAFC 198

Bielen & Kozma (2022) 66 Fam LR 59; [2022] FedCFamC1A 221

Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969

Blinko & Blinko [2015] FamCAFC 146

Browne & Dunn (1893) 6 R 67

Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251

Guerra & Guerra [2021] FedCFamC1F 73

Henderson v Queensland (2014) 255 CLR 1; [2014] HCA 52

Hollister & Gosselin [2016] FamCA 759

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378; (1983) 53 LGRA…

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AGLC
Moss & Moss (No 2) [2025] FedCFamC1F 510
Case
[2025] FedCFamC1F 510
Decision Date

CaseChat Overview and Summary

The matter before the Court involved a dispute between the parties, Ms Moss (the mother) and Mr Moss (the father), regarding the care, welfare, and residence of their two children, X and Y. The mother alleged that both the father and the paternal grandmother had physically and sexually abused the children. The father denied all allegations. The court was tasked with determining whether the allegations were substantiated, whether either parent posed an unacceptable risk of harm to the children, and what orders should be made for the children's residence and contact with each parent. The court also considered the applicability of the United Nations Convention on the Rights of the Child and evidentiary issues, such as the rule in Browne v Dunn.

The court found that the evidence did not support a finding that any abuse had occurred, and the father did not pose an unacceptable risk of harm to the children. However, the mother's unwavering beliefs and her conduct in collecting evidence were deemed to pose an unacceptable risk of harm to the children. The court noted that if the children were only exposed to the mother's narrative, they would grow up believing they had been abused by the father, which could harm their sense of self. The father's late proposal for supervised time with therapeutic support was considered, and the court decided to make orders consistent with this proposal.

The court examined the rule in Browne v Dunn, which requires a cross-examiner to put to an opponent's witness matters that are inconsistent with what that witness says and which are intended to be asserted in due course. The court found that the failure to put many of the mother's allegations to the father in detail did not mean the court was unable to reject the father's evidence. The father was on notice that the mother's version of events was in contest, and he had denied all allegations in his affidavit. The court concluded that the rule in Browne v Dunn did not apply in this case.

The court made orders that the children live with the mother, with the father having supervised and then unsupervised contact, gradually increasing to alternate weekends. The parents were required to engage a psychologist to provide therapeutic support to the children and to communicate with each other about the children through a specified parenting application. The Independent Children's Lawyer was directed to provide copies of the orders and reasons to relevant authorities and professionals. The orders also included provisions for information sharing, communication between the parents, and the discharge of the Independent Children's Lawyer.

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:

31 JULY 2025

THE COURT ORDERS THAT:

1. All previous orders are discharged.

2. These orders apply to the mother and father, unless they agree otherwise in writing.

3. All communications between the mother and father, including any agreements to vary the orders in writing (but save for emergencies involving the children), is to occur by the communication order set out in Order 18.

Parental responsibility

4. Except as otherwise provided by these orders, the mother be allocated sole decision making responsibility for all major long-term issues for X born 2017 and Y born 2020 ("the children").

5. In the event the mother makes a decision in the exercise of her sole decision making responsibility, she will communicate that decision to the father as soon as practicable thereafter.

6. The children shall attend B School for their primary education.

Live with and therapeutic supports

7. The children live with the mother.

8. The children's time with the father in Order 15(a) depends on the engagement and retention aspect of Order 9 being complied with by him, or any new therapist provided for by Order 13.

9. The father will engage and retain Ms D, Y's psychologist, to provide therapeutic support for the children at the parents' equal expense if the children's funding packages cannot cover this.

10. The parents are to facilitate the children's attendance and their own attendance (if either parent is requested to attend) on Ms D at all times as recommended by Ms D, for a period of not more than 12 months.

11. The Independent Children's Lawyer ("ICL") is to provide a copy of the Reasons and these orders and the Family Reports filed in these proceedings to Ms D (Y's psychologist) and Dr E (X's psychologist).

12. The parents by this Order authorise Ms D and Dr E to engage with each other about the children and these orders and Reasons, and to engage with each parent.

13. In the event Ms D is no longer offering services to the children but therapeutic support for the children is still required under Order 10:

(a) The father will nominate three (3) alternate psychologists within seven (7) days of Ms D advising her services will cease and the mother will select one of those psychologists within seven (7) days thereafter, and if she does not, the father will nominate the psychologist;

(b) The father is to provide that new psychologist with the documents set out in Order 11;

(c) Should that new psychologist withdraw their services but therapy for the children is still required under Order 10, then order 13(a) and (b) apply to the selection of a further new psychologist; and

(d) Orders 9-10 and 12 will continue to apply to the parties and with respect to any new psychologist/s.

14. Nothing in this order prohibits the mother from continuing to take X to the psychologist Dr E.

Time arrangements

15. The children spend time with the father as follows:

(a) Time supervised at the F Contact Centre for a minimum of two (2) hours each week, or such other consecutive hours that can be provided for 12 calendar months at the father's expense;

(b) At the conclusion of the time in Order 15(a), and for a further period of 12 months, for one block of six (6) hours, unsupervised, on alternative weekends with all changeovers to occur at the F Contact Centre at the father's expense and with the mother to communicate to the father on the Monday at the start of each time-with week whether the time will be on a Saturday or Sunday; and

(c) Upon the completion of time in Order 15(b), on alternate weekends from 9.00am Saturday until 5.00pm Sunday (during school terms and school holidays) with all changeovers to occur at the F Contact Centre at the father's expense.

16. The parents will take all steps necessary and sign all documents to engage with the F Contact Centre.

17. In the event the F Contact Centre withdraws its services:

(a) The father will nominate three (3) alternate supervised contact providers within seven (7) days of the F Contact Centre notifying the parents of its withdrawal;

(b) The mother will select one of those providers within seven (7) days thereafter;

(c) If she does not, the father will nominate the supervised contact provider; and

(d) Orders 15(a) and (b) and 16 apply to the parents with respect to that new service provider.

Communication between the parents

18. Save for an emergency involving either child, the parents shall communicate with each other about the children via a parenting application chosen by the mother and communicated to the father (via their legal representatives) within seven (7) days of this Order.

19. The parents shall keep one another advised of their current residential addresses and contact telephone and email details.

20. Using the parenting application, the parents shall keep each other advised of any medical or health care matters affecting the children in a timely manner and provide any reports to the other parent, save the mother is at liberty to redact identifying features of the practitioners.

Authorities and information sharing

21. The parties are at liberty to provide a copy of these orders to any school or day care provider used by the children, and the mother is at liberty to do same with respect to any medical practitioner or allied health care professional relevant to the children.

22. The parents by this Order authorise any school or day care provider attended by the children to provide all documents and information concerning the children which a parent would ordinarily receive to each parent, at the requesting party's expense, if any.

23. Within 14 days of the date of these orders, the ICL is to provide the Queensland Police Service and the Department of Families, Seniors, Disability Services and Child Safety (Queensland) with a copy of these orders and Reasons and the Family Reports prepared by Ms G on 8 December 2023 and 17 March 2025.

24. Within 14 days of the date of these orders, the ICL is to provide the children's General Practitioner with a copy of these orders and Reasons and the Family Reports prepared by Ms G on 8 December 2023 and 17 March 2025, but is not required to copy the parties into that correspondence, but is to confirm she has done so.

25. The mother is at liberty to provide a copy of these orders and Reasons to her counsellor.

Discharge of the ICL

26. Upon Orders 11, 23 and 24 being satisfied, the ICL is discharged.

AND THE COURT NOTES THAT:

A. Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in "Parenting Orders - obligations, consequences and who can help" and these particulars are included in these orders.

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

The father sought a change of residence, or the final orders dated 22 February 2022 remain in force,[2] or, in a fall back late in the trial, the children remain living with the mother and her beliefs, but be therapeutically supported to see that their father is not the monster the mother believes he is, along with some supervised time, then some day-time time and eventually alternate weekends from Saturday morning to Sunday afternoon.[2] These orders provided for inter alia, that: the parties have equal shared parental responsibility; the children live with the mother; spend supervised time with the father eventually moving to unsupervised time; and, ultimately culminating in alternate weekends and half holidays with the father. Background The applicant mother was born in 1979. She described herself in her affidavit as creative person. She resides in the former matrimonial home at the maternal grandparents’ J Property and lives there in exchange for working and providing maintenance twenty hours a week. The maternal grandparents reside on the same property in a separate dwelling nearby the mother’s residence. Throughout the proceedings, the maternal grandparents were included in references to the “mother’s household”. This was not challenged. The mother and her parents are a united force and they regularly help with the day-to-day needs of the children. The respondent father was born in 1983. The father lives with his parents in the same suburb as the mother but plans to move to a unit he owns when final orders are made. He works fulltime as a tradesman and said he could take three weeks off work if the children came to live with him, or maybe a bit longer. He deposed he was “seeing someone” but declined to give any information about her other than she is a health professional - he said he feared allegations from the mother against her because of her profession. Obviously, the children have no familiarity with his unit or his partner. The parties commenced cohabitation on or about mid-2011 and married in late 2012. X was born in 2017 and the father started to have unwanted penile erections in her presence shortly thereafter. The mother and father worked together to try and determine the cause and to trial measures to stop them happening. This included speaking to his General Practitioner (“GP”) and attending couples counselling. The Department of Families, Seniors, Disability Services and Child Safety (“the department”) became involved and asked the father to leave the home in November 2019. He did so under a Voluntary Safety Plan[3] and Intervention with Parental Agreement. No one suggested his voluntary actions were an acceptance by him of the allegations. The department was apparently concerned about the unwanted erections and allegations of family violence. The father engaged in counselling to deal with the unwanted erections and denied the family violence. He hoped the family would be able to reunify. That did not eventuate. [3] Exhibit 2, e p.34-37.

Evidence

Evidence Before The Court

Thus, I will consider what the mother alleges about the paternal grandmother later in these reasons. Afterall, the mother holds the onus of proof, and I reiterate what was said in Murdock & Madden:[15] “No inference should be drawn unless and until ‘enough has been proved to warrant a reasonable and just conclusion’ against the person not giving evidence.”[15] [2011] FamCAFC 219.Still with “rules” of evidence – the “rule” in Browne & Dunn[16][16] (1893) 6 R 67 (“Browne & Dunn”). I pause to observe Counsel for the father raised the “Potential applicability of the Rule in Browne v Dunn” in his written schema handed up in support of his oral submissions. That rule was comprehensively examined by McMurdo JA in R v JAE:[17] The rule in Browne v Dunn is a general rule of practice by which a cross-examiner should put to an opponent’s witness matters that are inconsistent with what that witness says and which are intended to be asserted in due course.[17] (2021) 294 A Crim R 146. The genesis of the father’s submission was that the mother was asked many questions to the effect of, “that's not in your affidavit, is it”. Here I am referring to allegations that post-date the 2022 final consent orders which were not in the mother's affidavit and fell from her when being challenged in cross-examination. It was then said that many of the mother's allegations were not put in detail to the father and thus the rule may have application. It is true that many of the mother’s allegations (especially ones coming out in cross-examination) were not put to the father. However, the father was clear in his affidavit that the mother's allegations had grown in potency from separation to the time of his 2025 trial affidavit. They grew and grew in the witness box too – that could not have taken him by surprise. I do not consider the failure to “put” to the father the mother's many allegations that fell from her in the witness box, means this court is unable to reject the evidence of the father.[18] For a start, from the father’s perspective the mother’s growing allegations in cross-examination was entirely consistent with the case he ran about her - she would say anything to stop the children having time with him. It is also the case that in his affidavit, the father denied any and all allegations of abuse by him and his mother.[19] [18] Quincey & Quincey [2024] FedCFamC1A 30. [19] Father’s affidavit filed 10 February 2025 at paragraphs 95 and 107-108. To that end, in LC and TC,[20] the Full Court said at [38]:In any event, it must be said that the rule in Browne v Dunn does not apply where the witness is on notice that the witness's version of events is in contest. That notice may come from the pleadings or the other side's evidence or the other side's opening; it may even come from the general manner in which the case is conducted. In general, however, this exception to the rule should only operate where the issue is a fairly clear and obvious one (see Seymour v Australian Broadcasting Commission 19 NSW LR 219 at 224-5 per Glass JA, Trade Practices Commission v Mobil Oil Australia Ltd [1984] FCA 238; (1984) 3 FCR 168 at 181, Jagelman v FCT (1994) 31 ATR 467 at 472-3, and Raben Footwear Pty Ltd v Polygram Records Inc [1997] FCA 370; 145 ALR 1 at 15).[20] (1998) FLC 92-803.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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