Schurman & Zahra
[2025] FedCFamC2F 273
•10 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Schurman & Zahra [2025] FedCFamC2F 273
File number(s): ASC 7 of 2023 Judgment of: JUDGE LIVERIS Date of judgment: 10 February 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – application for leave to file a notice of ceasing to act made the day before the commencement of the trial – applicant lawyer not physically present at the hearing – whether there are special circumstances that render it expedient to retain the lawyer on record – whether the trial can fairly proceed by AVL representation – application granted and procedural orders made Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court Act 2021 (Cth) s 190
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04, 3.10(1A)
Cases cited: Investec Bank (Australia) Ltd v Mann [2012] VSC 81
Re SM Project Developments Pty Ltd (In Liq) [2017] NSWSC 1010
Division: Division 2 Family Law Number of paragraphs: 16 Date of hearing: 10 February 2025 Place: Alice Springs Counsel for the Applicant: Ms Hume Solicitor for the Applicant: Northern Territory Legal Aid Commission Counsel for the First Respondent: Ms Ross Solicitor for the First Respondent: Aboriginal Legal Rights Movement Counsel for the Second Respondent: Mr Fryer Solicitor for the Second Respondent: Ruth Morley Legal Services Counsel for the Third Respondent: Mr Koziol Counsel for the Third Respondent: BK Legal Solicitor for the Independent Children's Lawyer: Ms Holtham, Story & Associates ORDERS
ASC 7 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SCHURMAN
Applicant
AND: MS ZAHRA
First Respondent
MS B MOSS
Second Respondent
MS C MOSS
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
10 FEBRUARY 2025
THE COURT ORDERS THAT:
1.Leave is granted for Mr Koziol to file a notice of ceasing to act for the Third Respondent.
2.The Third Respondent file and serve a Response to the Initiating Application within twenty-eight (28) days.
3.The trial dates listed for seven (7) days commencing on 10 February 2025 are vacated.
4.The matter is listed for mention on 4 April 2025 at 9.30am (ACST).
5.Any application for costs arising from the adjournment of the hearing be made within fourteen (14) days.
6.The duty solicitor acting for the Third Respondent for the purpose of settlement discussions has leave to inspect and photocopy all material returned under subpoena and all material returned pursuant to orders under s 69ZW / 67ZBE of the Family Law Act 1975.
THE COURT NOTES THAT:
A.The potential transfer of the matter to Division 1, or the Special Indigenous List in Adelaide was discussed, with any transfer application to be made by any party, and the issues to otherwise be discussed at the next mention.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE LIVERIS
I have before me an application that was made by the third respondent’s lawyer, Ben Koziol of BK Legal, yesterday, Sunday, 9 February 2025. The application, which was foreshadowed on Friday, 7 February 2025, seeks three orders, but two in substance: first, that Mr Koziol be granted leave to appear at the hearing of the application by audio visual link and second, that he be given leave to file a notice of ceasing to act for the third respondent, Ms C Moss.
Today is the first day of a 7-day trial that was listed on 29 August 2024. Mr Koziol has not appeared in person in Alice Springs. He has appeared by AVL anyway and there is not anything I can do about that fact.
In terms of the second part of the application, that Mr Koziol be granted leave to file a notice of ceasing to act for Ms C Moss, the starting point is rule 3.10(1A) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 that provides that a lawyer cannot file a notice of ceasing to act without leave if it is within 14 days of the hearing.
The application was foreshadowed on Friday, and it was made properly yesterday and was supported by an affidavit made by Mr Koziol on 9 February 2025.
In general terms, a lawyer may cease to act for a party where the client has failed to provide them with funds, or failed to instruct them properly in a way that inhibits them from carrying out their duties. However, the authorities have treated that matter differently where termination of a retainer is contemplated proximate to a hearing.
SM Project Developments[1] and Investec Bank (Australia) Limited v Mann[2] are both company matters, but in my view the principles set out in those authorities have some application because they discuss a similar issue. They state that there is no general right to file a notice of ceasing to act, the question of leave is not a mere formality and an applicant bears the onus of satisfying the court that leave should be granted. The authorities indicate that there can be some circumstances, where there are special circumstances that mean it is expedient to keep the solicitor on record, and that the solicitor who wants to cease to act for the party has to satisfy the court that leave should be granted in all the circumstances of the case.
[1] Re SM Project Developments Pty Ltd (In Liq) [2017] NSWSC 1010 at [3].
[2] Investec Bank (Australia) Ltd v Mann [2012] VSC 81 at [7] and [8].
I am required, first, to turn to section 190 of the Federal Circuit and Family Court of Australia Act 2021 and the overarching purpose of the civil practice and procedure provisions. The overarching purpose is broad, including important concepts such as the "just” resolution of disputes. Section 190 provides:
Overarching purpose of civil practice and procedure provisions
(1) The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Note 1: For civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), see subsection (4).
Note 2: The Federal Circuit and Family Court of Australia (Division 2) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court's overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
There is a corresponding obligation in rule 1.04. That requires parties to family law proceedings to conduct the proceeding in a way that is consistent with the overarching purpose, and the lawyers who act for parties must take note of that duty and must assist a party to comply with the duty. Rule 1.04 provides:
Overarching purpose
(1) The overarching purpose of these Rules, as provided by section 67 of the Federal Circuit and Family Court Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
Note 1: These Rules must be interpreted and applied, and any power conferred or duty imposed by them must be exercised or carried out, in the way that best promotes the overarching purpose (see subsection 67(3) of the Federal Circuit and Family Court Act).
Note 2: See sections 190 and 191 of the Federal Circuit and Family Court Act in relation to the overarching purpose of the Rules of the Federal Circuit and Family Court (Division 2). See also the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 which applies these Rules with modifications.
(2) Parties to family law proceedings must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
Note: See subsection 68(1) of the Federal Circuit and Family Court Act.
(3) A party's lawyer must, in the conduct of a proceeding before the court (including negotiations for settlement) on the party's behalf:
(a) take account of the duty imposed on the party referred to in subrule (2); and
(b) assist the party to comply with the duty.
Note: See subsection 68(2) of the Federal Circuit and Family Court Act.
So, in short, the question of leave is not a mere formality. I have now in affidavit form evidence from Mr Koziol given in support of the application. Mr Koziol’s evidence is that he has acted pro bono for Ms C Moss. He said there are times where he has accepted that he has not managed the file as could be expected and it has not been his top priority. He has said that he was able to obtain and finalise instructions to file Ms C Moss' trial affidavit in November 2024, and I have read that affidavit.
The affidavit sets out a position that Ms C Moss takes in the proceedings, but it does not, for example, set out, as some affidavits do, evidence that sets out a statement of what orders that Ms C Moss would like the court to make. So, one might be able to infer a certain position from the affidavit in relation to some matters, but the issues that I need to consider in these proceedings are complicated. They are complicated by a range of factors. Most family law proceedings are complicated and this matter is no different, but it brings its own unique considerations and I am not able to read Ms C Moss’ trial affidavit and form a clear position on exactly what sort of orders she is seeking.
Part of the reason for that is that Ms C Moss has not filed a response, despite orders being made a number of times for that to happen. All the other parties have filed responses and they set out exactly the orders that they want the court to make. Mr Koziol goes on to also say in his affidavit that, speaking generally, he could have been more proactive about contacting Ms C Moss, and he has expressed some regret that he did not make it clear to her earlier that he had no funding and would be unable to represent her at the trial. He has also made reference to Ms C Moss making her own arrangements to come to Alice Springs on Friday for the purposes of this trial.
That is the legal and factual scenario that I have before me, and counsel for the parties and the Independent Children’s Lawyer have made submissions about the complications and the procedural unfairness issues that arise from that blend of circumstances. In considering those circumstances, I note that had an application for leave to appear by AVL been made by Mr Koziol earlier, had it been something that I was able to consider as a standalone issue before everyone had come to Alice Springs, for the reasons that counsel have raised with me, and those concerns that I accept, I would not have allowed counsel for a party to appear by AVL at the trial because it is just too difficult and too unfair to put that person, counsel, or their client in a situation where there are thousands of pages of subpoenaed material and material returned under section 67ZBE orders to inspect and photocopy, to take instructions about and to discuss, for a trial to be fairly conducted by electronic means.
I was considering that issue today in the context of trying to find a solution that would work, because there is more than a week that this trial is listed to be held on and, of course, there is a young child, X, who everyone is concerned about and has positions in relation to that the court needs to finally resolve parenting arrangements for and, unfortunately, in my view, that cannot be done. It cannot be done today because of the circumstances that we are now in.
I think that the position taken by Mr Koziol in articulating in his affidavit what Ms C Moss might like by summarising the position that she might take at trial is a fraught one, given the evidence that I have about how the matter has come before the court, Ms C Moss’ affidavit sworn in November, and the evidence given to me today and the lack of any response filed by Ms C Moss.
In my view that all needs to be regularised, and Ms C Moss needs to be given the opportunity that she is entitled to obtain legal representation that can properly advise her, assist her in preparing for the hearing and to represent her at the trial. This is not a case where I am of the view that Mr Koziol should be required to remain on the record in the circumstances.
I will grant leave to Mr Koziol to file a notice of ceasing to act for Ms C Moss, and I will order Ms C Moss to file and serve a response to the initiating application within 28 days. The matter will be listed for a mention. I will not adjourn the matter to another hearing because this matter needs to be heard over several days and the court, unfortunately, just does not have that length of time available at short notice, and there are some other considerations that I will come to in a moment that need to be considered and resolved between now and then.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Liveris. Associate:
Dated: 3 March 2025
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