Justice Can’t Wait: Court Prioritises Children’s Welfare Over Counsel’s Availability

Introduction

In Moss & Moss [2025] FedCFamC1F 135, the Federal Circuit and Family Court of Australia addressed two critical procedural applications brought by the mother in a protracted parenting dispute. Justice Brasch delivered a detailed ex tempore judgment dismissing both the mother’s application to adjourn the trial due to her counsel’s unavailability and a request for government intervention under s 91B of the Family Law Act 1975 (Cth). At the heart of the ruling was a reaffirmation of the principle that the best interests of the children trump procedural preferences or party conveniences.

Facts and Issues

Facts

• The parties, married in 2012 and separated in 2019, are embroiled in a parenting dispute involving two children, X (born 2017) and Y (born 2020).
• In February 2022, final Consent Orders were made, granting the father supervised contact, later to increase in time.
• In January 2023, the mother unilaterally ceased the father’s contact with the children, alleging serious sexual abuse by him and the paternal grandparents.
• No court orders stayed the 2022 Consent Orders; however, the children have not seen their father since January 2023.
• Trial was fixed for March 2025.

Issues

1. Whether the trial should be adjourned due to the unavailability of the mother's preferred counsel (Counsel 3).
2. Whether the Court should request intervention by the Department of Families, Seniors, Disability Services and Child Safety under s 91B of the Family Law Act.

Application of the Law

1. Adjournment Application

Justice Brasch emphasised that:

• There is no absolute right to counsel of one’s choice (citing Grimwade v Meagher [1995] 1 VR 446; Western Australia v Ben Ward (1997) 76 FCR 492).
• The Bar Rules impose a duty on barristers to inform clients of potential unavailability promptly (Bar Rules r 105).
• The trial had been fixed since September 2024, and Counsel 3’s unavailability was known from 7 February 2025.

Drawing on Haset Sali v SPC Ltd (1993) 116 ALR 625, the court highlighted the balance between a party’s preference for counsel and the public interest in judicial efficiency and timely justice. Further, Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175 was referenced to support the efficient use of court resources.

Justice Brasch concluded the application lacked merit:

• The mother had prior notice and failed to secure alternative counsel.
• There was no evidence she attempted to do so.
• The interests of the children and the efficient administration of justice outweighed the inconvenience of changing counsel.

2. Departmental Intervention Request

The mother’s application for departmental intervention was rejected for several reasons:

• It was late and lacked urgency.
• The request under s 91B does not compel the department’s involvement (Secretary of the Department of Health and Human Services & Ray [2010] FamCAFC 258).
• The Court was not bound by any departmental position and had sufficient evidence (including reports and assessments) to proceed.
• Subpoenaing relevant officers was a viable and preferable alternative.

Citing Panelli & Panelli [2022] FedCFamC1F 652 at [151] and Fitzwater & Fitzwater [2019] FamCAFC 251, Justice Brasch reiterated that family courts are competent to determine children’s best interests without departmental input, especially when both parents claim they can provide care.

Analysis of the Judgment and Judicial Reasoning

Justice Brasch’s reasoning was grounded in:

• Balancing Competing Interests: The children's welfare required urgent resolution. Allowing an adjournment would push the trial into 2026, delaying justice and potentially harming the children’s stability
• .
• Judicial Efficiency: Court dates are scarce, and adjournments burden other litigants. The judge warned against privileging one party’s procedural preference over systemic integrity.
• Credibility and Evidence: The mother’s assertions about financial hardship and Counsel 3’s irreplaceability were unsubstantiated and made via affidavit from a law clerk, not the mother herself.
• Practical Alternatives: The court acknowledged the mother's right to legal representation, but emphasized there are many competent barristers in Brisbane, and re-briefing was neither impossible nor unaffordable in principle.

On the second issue, the judge saw no benefit to involving the department, as:

• The department had not indicated a desire to intervene.
• Evidence could be obtained through subpoenas.
• No party was seeking orders involving the department.

The Court also gave weight to the ICL’s position that the department's involvement was unnecessary as both parents claimed to be capable of care—a key threshold under s 91B was therefore not met.

Take-Home Lesson

This case underscores that:

• The best interests of the child remain paramount in family law proceedings—even over logistical or financial concerns of parties.
• Parties cannot assume adjournments will be granted due to counsel unavailability, especially when alternatives exist.
• Litigants and their lawyers must act promptly and substantively support any requests for adjournment or procedural variation.
• Courts will resist unnecessary delays and demand efficient use of their resources, particularly where children's welfare is at stake.