Saidov & Saidov (No 2)
[2025] FedCFamC2F 223
•6 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saidov & Saidov (No 2) [2025] FedCFamC2F 223
File number(s): CAC 493 of 2020 Judgment of: JUDGE PARKER Date of judgment: 6 February 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – adjournment application made where Mother failed to attend Court while under cross-examination – application refused Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r 15.19 Cases cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Buljubasic & Buljubasic [1999] FamCA 474; (1999) FLC ¶92-865
Haines & Rader (No 2) [2022] FedCFamC1F 685
Langley & Tarelli and Anor (No 2) (2020) FLC ¶93-963
Magjarraj v Asteron Life Limited [2009] NSWSC 1433
Myron & Milson [2020] FamCAFC 151; (2020) FLC ¶93-969
Novikov & Novikov [2024] FedCFamC1A 56
Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146
UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107
Division: Division 2 Family Law Number of paragraphs: 16 Date of hearing: 6 February 2025 Place: Adelaide Counsel for the Applicant: Ms Betro Solicitor for the Applicant: Eastern Legal Counsel for the Respondent: Mr Bowler Solicitor for the Respondent: Debra Spizzo And Associates Counsel for the Independent Children's Lawyer: Ms Fuda Solicitor for the Independent Children's Lawyer: Comley Legal ORDERS
CAC 493 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SAIDOV
Applicant
AND: MS SAIDOV
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
6 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The adjournment application made by the Mother is refused.
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 PARKER:
These reasons were delivered ex tempore and have been settled from the transcript. Grammatical errors have been corrected, citations have been added and amendments have been made to make the orally delivered reasons clear and easy to read.
The application before the Court is an application made on behalf of the Mother to adjourn the final hearing of this matter. The overall proceeding relates to both property and parenting matters and includes an application by the Father for a change of primary residence with respect to the parties’ three children, X born 2016, Y born 2017 and Z born 2019. That application is the issue that has occupied most of the time during the trial. This is the tenth day of what was supposed to be a four day trial which commenced in April 2024. The trial has been adjourned part heard on two occasions already, and has sustained considerable delay.
Yesterday, on the ninth day of the trial, an adjournment for a period of one day was granted on the basis that Counsel appearing for the Mother was unwell. It has since emerged that Counsel was in fact double briefed, having accepted and retained a brief to appear before another judge of this Court in a contravention hearing on the same day. A similar adjournment application was made to that judge. It is therefore not known whether Counsel in fact intended to attend this hearing on that day had she not been unwell. That member of Counsel is not presently available to answer any queries in that regard.
The Mother originally made the application to adjourn today’s listing by way of the improper method of a unilateral email to chambers, based on the continued illness of Counsel. A little over an hour after that application was refused and her solicitor was advised of the need for an attendance today, a further application for an adjournment was made, once again by the improper means of an email to chambers, this time on the basis of an asserted illness of the Mother herself.
Different Counsel for the Mother has appeared this morning to press the adjournment application, and has tendered a medical certificate,[1] the contents of which were as follows:
This is to certify that [Ms Saidov] is receiving medical treatment, for the period: 06/02/2025 to 07/02/2025 inclusive, she will be unfit to continue her usual activities. This Certificate was completed on 05/02/2025. This Certificate was completed on 05/02/2025.
[1] Exhibit M3.
The relevant principles as to what constitutes an adequate medical certificate for the purposes of adjourning proceedings or explaining non-attendance are set out in UTSG Pty Ltd v Sydney Metro (No 5)[2] as follows:
42.While each case turns on its facts, the medical evidence should, at a minimum, answer the central question of why – and not just whether – the medical condition will prevent a litigant from participating in a court hearing either in person or by some other means (for example, by telephone). It is this nexus that is critical.
43.To be sufficient, the medical evidence should identify in broad terms the medical condition that the person is suffering from, the symptoms of that condition insofar as they are relevant to a litigant’s participation in a court hearing, the severity of the condition, and its expected duration. The doctor providing the certificate must be clearly identified and the certificate must be signed and dated.
44.Absent this bare minimum the opposing party cannot, as a matter of fairness, test the cogency of the medical evidence and the Court does not have sufficient information before it to meaningfully exercise its discretion to grant the vacation sought. To the extent that the provision of an appropriately detailed medical certificate to the Court (and to the opposing party) results in a loss of privacy, this is the price that must be paid by a litigant in order for the Court to grant the indulgence of a vacation of hearing dates, a course that a Court does not undertake lightly having regard to the inevitable increased cost to the parties of the delay and the inefficient allocation of Court resources that results.
[2] [2019] NSWLEC 107. See also Novikov & Novikov [2024] FedCFamC1A 56; Haines & Rader (No 2) [2022] FedCFamC1F 685.
Justice Barrett in the Supreme Court of New South Wales similarly held as follows in Magjarraj v Asteron Life Limited[3]
22.All too frequently judges see cryptic written statements from medical practitioners referring to some undisclosed and undiagnosed “medical condition”, culminating in the assertion that a person is unfit to attend court or unfit for a court hearing. To the extent that such statements are put forward as evidence about the state of the person’s health and the extent to which impaired health may incapacitate a person from participating in court proceedings, the statements fail the most fundamental test for the reception of expert evidence. Bald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything.
[3] [2009] NSWSC 1433.
The medical evidence relied upon by the Mother in the present application falls far short of meeting the most basic requirements of adequacy to support an adjournment application, and indeed falls squarely within the identified category of evidence that should not be accepted.
The Mother was not in attendance at Court this morning despite not having been excused from attendance. Her absence does not constrain the ability of the Court to refuse her application for an adjournment.[4]
[4] Federal Circuit and Family Court of Australia (Family Law) Rules 2021, rule 15.19; Buljubasic & Buljubasic [1999] FamCA 474; (1999) FLC ¶92-865.
In considering the adjournment application, I have regard to the fact that the Mother has had a long and problematic history of failing to comply with the orders and directions of this Court, acting in contumelious disregard of her obligations, and simply expecting to be granted indulgences by the Court without consequence. This has included a prior occasion upon which the Mother failed to attend at Court when she was required to do so.
This conduct is not only entirely unacceptable, but, when considered together with the extremely coincidental timing of her asserted illness, casts serious doubts over the genuineness of that assertion. Counsel appearing for the Mother today advised the Court that his instructing solicitor had been unable to make further contact with the Mother this morning to obtain further details about her condition, and that she has not been responding to phone calls. That is also entirely unacceptable.
It is well established that adjournments should only be granted where it is in the interests of justice to do so.[5] In considering the interests of justice, it is appropriate to have regard to considerations including the applicable case management principles, the resources of the Court, the interests of and any prejudice to the litigants in the proceedings, the competing claims of other cases, and the importance of the finality of litigation.[6] This trial has already been adjourned part heard on two occasions, and has been on foot for the better part of a year, to the considerable prejudice of the Father, who is the party seeking a significant change to the current interim arrangements. It is of considerable importance that it be brought to a conclusion as quickly as possible.
[5] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
[6] Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146; Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
The Mother is presently under cross-examination. This means that if the trial were to be adjourned now, she would be unable to communicate with her lawyers about almost any aspect of the matter during the period of the adjournment, which, although she may not presently appreciate it, would be a significant prejudice to her. It also means that continuing at this point with so much of the trial as would be able to be completed in the remainder of this week, having regard to the time remaining and the unexpected unavailability of the Family Report writer to give evidence, does not require the representatives for the Mother to undertake any cross‑examination. As a consequence, the prejudice arising from not having her original Counsel available, if any, is minimal.
The Father, being the party seeking the more significant change to the current arrangement, would be prejudiced by further delay. I am conscious also that the Father sought an interim change of residence shortly prior to the commencement of the trial in April 2024, and that application was refused, largely on the basis of the impending trial. The conclusion of the trial has taken significantly longer than could possibly have been anticipated at that time. It will be much easier and faster to find a single day to conclude the trial with the expert’s evidence and closing submissions than another three to conclude the Mother’s evidence as well. I will not have three consecutive days available for a period of many months.
More importantly, in deciding whether or not to grant an adjournment of parenting proceedings, the best interests of the children must be considered, and the decision should serve and certainly should not thwart those interests.[7] This consideration includes having regard to the impact of the protraction of litigation on the children. It is clear from the evidence of both parties and the other evidence before the Court that this dispute is having a very significant detrimental impact on the children’s emotional wellbeing. It is in their best interest that I do everything I possibly can to bring it to a close for them at the earliest possible time.
[7] Langley & Tarelli and Anor (No 2) (2020) FLC ¶93-963; Myron & Milson [2020] FamCAFC 151; (2020) FLC ¶93-969.
Furthermore, the Father’s case is that the children are at significant risk in the Mother’s care, and adjourning the matter further with them remaining in her care is, as a consequence, itself a course of action which may entail considerable risk to their safety and wellbeing. I am of the view that it is not in the interests of justice to adjourn this matter at the current time, having regard to all of these considerations, and as such the adjournment application is refused.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Parker. Associate:
Dated: 20 February 2025
8
1