Saidov & Saidov (No 3)
[2025] FedCFamC2F 226
•14 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saidov & Saidov (No 3) [2025] FedCFamC2F 226
File number(s): CAC 493 of 2020 Judgment of: JUDGE PARKER Date of judgment: 14 February 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – adjournment application – lawyers’ professional responsibilities – concerns as to capacity of party – adjournment granted – consequential interim parenting orders Legislation: Family Law Act 1975 (Cth) ss 60CC, 61DA, 68B, 69ZL Cases cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Langley & Tarelli & Anor (No 2) (2020) FLC ¶93-963
Myron & Milson [2020] FamCAFC 151; (2020) FLC ¶93-969
Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146
Saidov & Saidov [2025] FedCFamC2F 165
Saidov & Saidov (No 2) [2025] FedCFamC2F 223
Division: Division 2 Family Law Number of paragraphs: 18 Date of hearing: 14 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
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
14 FEBRUARY 2025
UPON NOTING THAT:
A.It is the intention of the Court that the listing of any application made during the period of the adjournment will be considered at the mention.
B.It is the intention of the Court that the further listing of the trial will be considered following the determination of any application made during the period of the adjournment, and any question as to the filing of any application to reopen and adduce further evidence will be addressed at the time when the balance of the trial is listed.
C.Pursuant to section 65DA(2) and Section 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to an comply with an order are set out in Annexure A and the Fact Sheet from the Federal Circuit and Family Court attached hereto and these particulars are included in and form part of these orders.
THE COURT ORDERS THAT:
1.Ms Lee of Counsel be excused from any further participation in the final hearing of this matter.
2.Family Report Writer, Ms H, be provided a copy of the interim judgment dated 12 February 2025 to be read prior to her giving evidence.
3.All previous orders with respect to parental responsibility, time and communication be discharged.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
4.The Father have sole parental responsibility for the children X born in 2016, Y born in 2017, and Z born in 2019 (‘the children’).
5.The children live with the Father.
6.The children spend time and communicate with the Mother at such times and upon such conditions as may be agreed by the parties and the Independent Children’s Lawyer in writing.
7.The Mother is restrained and an injunction is hereby granted restraining her from attending at or approaching within 200 metres of the children’s residence or school, save as otherwise agreed between the parties and the Independent Children’s Lawyer.
THE COURT FURTHER ORDERS THAT:
8.The further hearing of the trial is adjourned to a date to be fixed.
9.Any application made by the Mother or her legal representatives with respect to the appointment of a litigation guardian or the withdrawal of her legal representatives is to be made by no later than 4.00pm on 15 April 2025.
10.Any application with respect to the appointment of a litigation guardian must be accompanied by medical evidence in proper form.
11.The matter is listed for mention on 12 May 2025 at 9.30am via Microsoft Teams.
12.The interim hearing listed for 21 February 2025 be vacated.
13.Order 7 of the orders made 9 July 2024 be discharged.
14.The costs of the Father and the Independent Children’s Lawyer of this day be reserved.
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.
ADJOURNMENT APPLICATION
This is the eleventh day and was supposed to be the final day of what was originally listed as a four day trial in proceedings relating both to property matters and parenting arrangements for the parties’ three children, X born in 2016, Y born in 2017 and Z born in 2019. The trial commenced in April 2024 and, since that time, has been adjourned part heard on three occasions. It has unfortunately taken considerably longer to complete than was initially anticipated by the parties or the Court.
The purpose of today’s listing was intended to be cross-examination of the final witness, being the Family Report writer, and closing submissions, although Counsel for the Father has since raised the possibility of brief further evidence being given by her client with respect to recent developments, and Counsel for the Mother has foreshadowed the likelihood of seeking to call evidence in response.
At the commencement of the proceedings and of the trial, the children resided with the Mother in Adelaide. On the last occasion when this matter was before the Court, being 6 February 2025, the tenth day of the trial, the Mother failed to present herself at Court to continue her cross-examination despite not having been excused and persisted in her failure to attend notwithstanding the refusal of an adjournment application made on her behalf.[1]
[1] See Saidov & Saidov (No 2) [2025] FedCFamC2F 223.
For a combination of reasons, including evidence I had heard during the trial indicative of significant risk issues in the Mother’s care, the Mother’s failure to attend Court, and information provided to the Court suggesting that she had failed to take the children to school, on that day, I acceded to the Father’s application, supported by the Independent Children’s Lawyer (‘ICL’) for interim orders providing for the children to live with him, for them to spend time with the Mother as agreed between the parties and the ICL, an order for delivery up of the children to the Father, and a recovery order, which was to issue in the event of non-compliance with the delivery up order.[2]
[2] See Saidov & Saidov [2025] FedCFamC2F 165.
I understand that there is further evidence sought to be given with respect to the circumstances which then unfolded but, at this point, I am aware that the delivery up order was not complied with, the recovery order did issue, and the Australian Federal Police were involved in the children being delivered into the care to the Father on 7 February 2025. The children have been in the care of the Father and resident in Canberra since that time.
This morning, on what was supposed to be the final day of the trial, Counsel for the Mother raised two significant issues with the Court:
(a)Firstly, that the Mother had disclosed to her solicitor and Counsel information about her conduct which was relevant to the proceedings and which she had not authorised them to impart to the Court, as a consequence of which they were ethically compromised and, subject to professional ethical advice, which they intended to obtain, were likely to need to withdraw from acting; and
(b)Secondly, that the Mother’s presentation had caused her solicitor and Counsel concerns about her capacity to give instructions, and they had formed the view that a psychological assessment in relation to that issue was necessary.
On the basis of those issues, Counsel for the Mother pressed for an adjournment of the final day of the trial for the dual purposes of obtaining an assessment with respect to the Mother’s capacity and obtaining advice with respect to the ethical issue. Both the Father and the ICL emphasised the importance of the matter being finalised without further delay and the need for stability and certainty for the children. However, the submissions made on behalf of both acknowledged the difficulties associated with the prospect of proceeding while the issue of the Mother’s capacity remained unresolved.
It is well established that adjournment should only be granted where it is in the interests of justice to do so.[3] In deciding whether or not to grant an application for an adjournment of parenting proceedings, the Court must have regard to the best interests of the children, and this includes consideration of the impact of protraction of the litigation on the children.[4] Other relevant considerations include the interest of the litigants in the particular case, the effect of an adjournment on court resources, the competing claims of litigants in other cases awaiting hearing, the importance in the proper working of the system of adherence to dates fixed for hearing, whether the adjournment is sought for a reasonable period of time, whether there is an adequate reason given for the adjournment request, the prejudice that either party would suffer if the adjournment were or were not to be granted, whether that prejudice could be met by a costs order, any delay in making the adjournment application, and the importance of finality of litigation.[5]
[3] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
[4] Langley & Tarelli & Anor (No 2) (2020) FLC ¶93-963; Myron & Milson [2020] FamCAFC 151; (2020) FLC ¶93-969.
[5] 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.
In this case, the Mother has a long and entirely unacceptable history of failure to comply with Court orders and directions, acting in disregard of her obligations and simply expecting the Father, the ICL and the Court to fall into line. This leads me to some significant hesitation in granting her any further indulgences. If the issue had simply whether to proceed in the absence of the Mother’s legal representatives upon their withdrawal in circumstances entirely of her own making, I would not have been inclined to grant the adjournment.
However, the issue raised as to the Mother’s capacity has given me cause for concern. This is particularly so given that I myself had observed some degree of detachment from reality in the Mother when she gave her evidence.[6]
[6] See Saidov & Saidov [2025] FedCFamC2F 165.
Although there would be prejudice to the Father in the matter being adjourned and thus dragged out further, no doubt at further expense, the children are now living with him and will continue to do so during the period of any adjournment, and there is therefore no prejudice to him in terms of the substantive outcome of the proceedings.
I am likewise satisfied that the children’s interests, although indisputably negatively affected by the conflict, are protected by their current living arrangements and any long-term detrimental impact on them of granting the adjournment would likely be minimal.
There are the considerations of the Court’s resources, operation of the Court’s case management and the impact on other litigants, as well as the need for finality of the proceedings, particularly given the number of adjournments that has already taken place since this trial commenced. However, as the High Court of Australia held in Aon Risk Services Australia Limited v Australian National University,[7] the expeditious dispatch of the business of the Court must be subordinate to the interests of justice.
[7] [2009] HCA 27; (2009) 239 CLR 175.
In my view, the risk that the matter may be finalised in circumstances in which the Mother does not have capacity to participate effectively would cause considerable prejudice to her, which would overcome the balance of these considerations and could not otherwise be remedied. It would also risk undermining the integrity of the balance of the trial. Furthermore, I am conscious that the capacity issue has been raised by Counsel on the basis of his own observations and not by the Mother herself, and I therefore accept at face value without question that the concern is genuinely held. As a consequence, the application for an adjournment is granted.
COSTS
Both the Father and the ICL seek their costs thrown away as a consequence of the adjournment. In the Father’s case, the costs are sought on an indemnity basis. On their face, these applications are both strong and they enjoy likely prospects of success. However, in my view, the question of the Mother’s capacity and her ability to provide instructions is relevant to the question of costs, and it is also relevant to the basis upon which the costs would be assessed. As a consequence, I will reserve the question of costs to the final determination of the proceedings.
CONSEQUENTIAL INTERIM PARENTING ORDERS
Insofar as they relate to interim parenting matters arising as a consequence of the adjournment, these reasons are given in short form pursuant to section 69ZL, and having regard to the matters set out in section 60CC, of the Family Law Act 1975 (Cth). Counsel for the ICL submitted, and I agree, that the adjournment necessitates an interim order for the Father to have what is still, for the purpose of these proceedings (noting that the trial commenced prior to 6 May 2024), known as sole parental responsibility, for reasons including but not limited to the need to facilitate their enrolment in and attendance at school in Canberra where they are now residing.[8] This order was not opposed. I am satisfied that it is in the children’s best interests to make such an order, and it will be made.
[8] The Court being satisfied in the circumstances pursuant to subsection 61DA(3) of the Family Law Act 1975 (Cth) that it is not appropriate to apply the presumption of equal shared parental responsibility when making this interim order.
The ICL also sought injunctions restraining the Mother from attending at or approaching within 200 metres of the children’s school (this application subsequently being amended to include their place of residence). Having heard the parties’ evidence in this case, I am satisfied that the Mother has a concerning history of behaving in impulsive ways which are not child focused, particularly when she is upset and particularly when her care of the children has been challenged. She also has a long history of retaining the children in her care contrary to her obligations pursuant to Court orders. I am satisfied that such an injunction is necessary to protect the children from the risk of such conduct destabilising their transition into the Father’s care and is therefore in their best interests and appropriate for their welfare.[9] An injunction will be made in the terms sought by the ICL.
[9] Within the meaning of section 68B of the Family Law Act 1975 (Cth).
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Parker. Associate:
Dated: 21 February 2025
2
4
1