FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saidov & Saidov (No 4) [2025] FedCFamC2F 495
File number: CAC 493 of 2020 Judgment of: JUDGE PARKER Date of judgment: 16 April 2025 Catchwords: FAMILY LAW – CHILDREN – whether the parties’ three young children are at unacceptable risk of physical, psychological and emotional harm from Mother – where serious concerns raised about Mother’s mental health and parenting capacity – failure by Mother to support relationship with Father – persistent failure by Mother to comply properly with court orders – where children are to reside with Father and spend no time with Mother
FAMILY LAW – PROPERTY – dispute as to whether funds received from De Facto Husband’s parents were a gift or a loan – whether funds withdrawn by De Facto Wife from superannuation are to be added back – full-time care of young children
FAMILY LAW – PRACTICE AND PROCEDURE – whether evidence elicited under cross-examination by a member of Counsel who did not hold a valid practising certificate should be excluded pursuant to section 138 of the Evidence Act 1995 (Cth)
Legislation: Evidence Act 1995 (Cth) ss 138, 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DAAA, 69ZM, 69ZN, 69ZX, 90SM, 90SF, 102NA, 117
Family Law Amendment Act 2023 (Cth) s 12(b)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 175, 189
Judiciary Act 1903 (Cth) s 55B(1)(a)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.23(4)(b), 3.08, 8.15(3)(e), 13.14
Legal Practitioners Act 1981 (SA) ss 5, 21(1)(a); 21(2)(e)
International Covenant on Civil and Political Rights art 14
Cases cited: A & A [1998] FamCA 25; (1998) FLC ¶92-800
Adair & Adair [2019] FamCAFC 70
af Petersens & af Petersens [1981] FamCA 50; (1981) FLC ¶91-095
Aleksovski & Aleksovski [1996] FamCA 111; (1996) FLC ¶92-705
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Atkinson v Bradford Third Equitable Benefit Building Society (1890) 25 QBD 377
B & B (Access) [1986] FamCA 52; (1986) FLC ¶91-758
B & B [1993] FamCA 143; (1993) FLC ¶92-357
B & B: Family Law Reform Act 1995 [1997] FamCA 33; (1997) FLC ¶92-755
Bant & Clayton [2019] FamCAFC 198; (2019) FLC ¶93-924
BAR & JMR (No 2) [2005] FamCA 386; (2005) FLC ¶93-231
Bennett & Bennett [2001] FamCA 462; (2001) FLC ¶93-088
Best & Best [1993] FamCA 107; (1993) FLC ¶92-418
Bevan & Bevan [2013] FamCAFC 116; (2013) FLC ¶93-545
Bielen & Kozma [2022] FedCFamC1A 221
Biltoft & Biltoft [1995] FamCA 45; (1995) FLC ¶92-614
Bishop & Bishop [2013] FamCAFC 138; (2013) FLC ¶93-553
Blinko & Blinko [2015] FamCAFC 146
Bokin & Wild [2022] FedCFamC1A 209
Bolger & Headon [2014] FamCAFC 27; (2014) FLC ¶93-575
Brown & Pederson [1989] FamCA 8
Browne & Green [1999] FamCA…
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- Case
- [2025] FedCFamC2F 495
- Decision Date
CaseChat Overview and Summary
The court found that the children were at unacceptable risk of harm from their mother due to her mental health issues and parenting capacity concerns. As a result, the court granted sole parental responsibility to the father, ordered that the children live with him, and prohibited the mother from having any contact with them, except for limited communication through prepaid post. The court also addressed the property dispute, determining that the funds received from the de facto husband's parents were a gift and not a loan. The court further ruled that funds withdrawn by the de facto wife from superannuation should not be added back. Lastly, the court decided that the evidence elicited under cross-examination by the member of counsel without a valid practising certificate would not be excluded, as it did not significantly prejudice the respondent.
The court's final orders granted sole parental responsibility to the father, prohibited the mother from contacting the children, and outlined the property division and financial arrangements between the de facto husband and wife. The court also provided guidelines for costs applications and the discharge of the Independent Children's Lawyer.
Orders
Orders of the court
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:
16 APRIL 2025
UPON NOTING THAT:
A. 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:
Parenting
1. All previous parenting orders are discharged.
2. The Father have sole parental responsibility for the children X born in 2016, Y born in 2017 and Z born in 2019 (‘the children’).
3. The Father advise the Mother via the Our Family Wizard App about any major long-term decisions he makes for the children.
4. The children live with the Father.
5. The children spend no time with the Mother.
6. The Mother be at liberty to communicate with the children by way of card, gift or letter by prepaid post to a postal address provided in writing by the Father each alternate month commencing April 2025.
7. The Father advise the Mother in writing of a postal address for the purposes of giving effect to order 6 herein forthwith and within 14 days of any change to that address.
8. The Father be at liberty to withhold any card, gift or letter sent by the Mother to the children if he forms the view that its contents are abusive or may for any other reason cause the children or any of them to suffer emotional harm.
9. The Mother have no communication with the children save as expressly provided for in these orders.
10. The Mother be restrained and an injunction is hereby granted restraining her from:
(a) Attending any school, educational facility or other location at which the children may be present from time to time; and/or
(b) Approaching within 50 metres of any of the children; and/or
(c) Removing any of the children from the care of the Father or the care of any other person or organisation.
11. The parties each be and an injunction is hereby granted restraining them from:
(a) Posting any content about the children or the other party on the internet or social media (other than in private groups or forums not accessible to the public);
(b) Denigrating the other party or their family to or in the presence or hearing of the children; and/or
(c) Discussing these proceedings or the dispute between the parties with or in the presence or hearing of the children.
12. The Father be at liberty to:
(a) Obtain passports for the children without the need for the Mother’s signature or consent; and
(b) Travel internationally with the children or facilitate their international travel without the need for the Mother’s consent.
13. The Mother be at liberty to obtain, at her own expense, copies of the children’s school reports, school photographs, medical information and other documents and materials ordinarily made available to parents.
14. As soon as practicable after the making of these orders, the Independent Children’s Lawyer meet with the children via electronic means to explain the orders to each of them.
Property
In full and final settlement of all claims that either party may have against the other for settlement of property and alteration of interests in property pursuant to Part VIIIAB of the Family Law Act 1975 (Cth):
15. Within sixty (60) days of these orders (‘the settlement date’) the De Facto Husband pay into his solicitor’s trust account the sum of ONE HUNDRED AND THIRTY-NINE THOUSAND ONE HUNDRED AND FIFTY-ONE DOLLARS ($139,151) (‘the settlement sum’), such sum to be held on behalf of the De Facto Wife to be distributed in accordance with order 19 hereof.
16. Contemporaneously with the De Facto Husband’s compliance with order 15 hereof:
(a) The De Facto Wife do all acts and things required to transfer to the De Facto Husband the whole of her estate, title and interest in the property at B Street, Suburb C in the State of New South Wales (‘the Suburb C property’) with the De Facto Husband to be solely responsible for the costs of the transfer including the discharge of mortgage fee, registration of transfer fee, conveyancing and PEXA fees; and
(b) The De Facto Husband do all acts and things required to discharge the mortgage encumbering the Suburb C property and refinance the associated liability into his sole name.
17. Pending the settlement date, the De Facto Husband make all instalments of principal and interest pursuant to the loan secured by way of mortgage encumbering the Suburb C property and pay all rates, taxes and other outgoings with respect to the Suburb C property.
18. In default of payment of the settlement sum by the settlement date, and should such default continue for a period of more than 30 days, the Suburb C property shall be sold and the net proceeds of sale thereof shall be divided as to the settlement sum to the De Facto Wife together with all interest accrued thereon and the costs of and incidental to any application to this Honourable Court for sale of the said property, and the balance thereof to the De Facto Husband.
19. The funds paid into the De Facto Husband’s solicitor’s trust account in accordance with order 15 hereof shall be distributed to De Facto Wife forthwith upon her compliance with order 16(a) hereof, SAVE THAT in the event that any application for costs against the De Facto Wife is made by the De Facto Husband and/or the ICL in accordance with order 32 hereof, the De Facto Husband’s solicitors shall be at liberty to retain a sum equivalent to the total of the quantum of costs sought against the De Facto Wife pending resolution or determination of such costs application(s) and shall be at liberty to apply so much of the funds as are required to meet any costs order made prior to distributing the balance to the De Facto Wife.
20. The De Facto Husband indemnify the De Facto Wife and keep her forever indemnified with respect to all instalments of principal and interest pursuant to the loan secured by mortgage encumbering the Suburb C property.
21. The De Facto Wife hereby indemnifies the De Facto Husband and keeps the De Facto Husband forever indemnified in respect of:
(a) Any past, present or future taxation liability of the De Facto Wife;
(b) Any liability registered in the De Facto Wife’s name;
(c) Any credit card liability registered in the De Facto Wife’s name; and
(d) Any future liability of the De Facto Wife.
22. The De Facto Husband hereby indemnifies the De Facto Wife and keeps the De Facto Wife forever indemnified in respect of:
(a) Any past, present or future taxation liability of the De Facto Husband;
(b) Any liability registered in the De Facto Husband’s name;
(c) Any credit card liability registered in the De Facto Husband’s name;
(d) The funds owed pursuant to the loan agreement with Ms D and Mr E; and
(e) Any future liability of the De Facto Husband.
23. Subject to any other provision of these orders, henceforth all real property and personalty in the possession of the De Facto Wife including but not limited to:
(a) her Motor Vehicle 1;
(b) her savings;
(c) her superannuation entitlements;
(d) her valuables collection;
(e) any long service leave entitlements and life insurances;
(f) any shares and investments in her name; and
(g) any furniture, furnishings and effects
shall vest absolutely in the De Facto Wife free of all further claim or demand or right or entitlement of the De Facto Husband.
24. Subject to any other provision of these orders, henceforth all real property and personalty in the possession of the De Facto Husband including but not limited to:
(a) the Suburb C property;
(b) his Motor Vehicle 2;
(c) his Motor Vehicle 3;
(d) his Motor Vehicle 4;
(e) his savings;
(f) his jewellery;
(g) his superannuation entitlements;
(h) any long service leave entitlements and life insurances; and
(i) any furniture, furnishings and effects
shall vest absolutely in the De Facto Husband free of all further claim or demand or right or entitlement of the De Facto Wife.
25. In relation to the De Facto Husband’s superannuation entitlements with Super Fund 1, Member Number: … (“Super Fund 1”):
(a) pursuant to section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the De Facto Husband’s entitlements in Super Fund 1, the De Facto Wife shall be paid an amount calculated in accordance with Part 7 of the Family Law (Superannuation) Regulations 2025 using the base amount of $22,956 and there shall be a corresponding reduction in the entitlement the De Facto Husband (and any other person to whom a splittable payment may be made) would have had in Super Fund 1 but for this order;
(b) the operative time for order 25(a) is four business days after the service of the final orders upon Super Fund 1;
(c) having been afforded procedural fairness, the trustees of Super Fund 1 shall be bound to observe the provisions in paragraphs 25(a) and 25(b) herein and the requirements pursuant to the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2025;
(d) the parties and the trustees of Super Fund 1 shall do all such things and sign all such documents as may be necessary to comply with the provisions in paragraphs 25(a) and 25(c) herein and the requirements pursuant to the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2025;
(e) within 7 days of this order being made:
(i) the De Facto Wife shall serve a copy of this order upon the trustees of Super Fund 1; and
(ii) the De Facto Wife shall give notice in writing to the trustees of Super Fund 1 pursuant to regulation 72 of the Family Law (Superannuation) Regulations 2025;
(f) after service of payment split notice pursuant to regulation 7A.03 of the Superannuation Industry (Supervision) Regulations 1994 the De Facto Wife shall do all things and sign all documents as may be necessary to, including but not limited to, exercising her request pursuant to regulation 7A.05 of the Superannuation Industry (Supervision) Regulations 1994 for the transfer or rollover of the transferable benefits pursuant to these orders to a complying superannuation fund of her choosing.
(g) the parties shall each pay one half of any fees charged by the trustees of Super Fund 1 in administering the payment split pursuant to paragraph 25(a) herein.
26. Within 14 days of these orders, the parties shall do all things and take all steps and sign all such documents as shall be necessary to sever their financial ties in respect of telephone plan contracts, the payment of life insurance premiums, the payment of health insurance premiums and any other joint contracts, accounts, plans or services.
27. Each party shall (subject to compliance with the specific provisions of these orders):
(a) release the other party from any liability for any claim that either one may have against the other in respect of any property and/or financial resources present or future whether equity vested or contingent it now or hereafter owned by either of them; and
(b) discharge without calling upon the other to contribute thereto to their several debts contracted for or by them.
28. Henceforth each party is restrained, and an injunction is granted restraining each of them from pledging the credit of the other.
29. In relation to each transfer required by the terms of these orders, the transferee in each case shall pay the cost and disbursements of and incidental to any transfer to give effect to the terms of these orders.
30. Each party do all such acts and things and sign all such necessary documents to give effect to the terms of these orders.
31. If either party refuses or neglects to execute any Memorandum of Transfer or any other document necessary to give effect to the terms hereof in the proper form within 7 days after the same shall have been tendered to that party by or on behalf of the other party then in such case a Judicial Registrar of the Federal Circuit and Family Court of Australia (Division 2), upon proof by affidavit of such refusal or neglect, is hereby appointed to execute and if in his or her opinion it shall be necessary to do so, to settle the same and do all such other acts and things and execute such other documents as shall be necessary to give full force and effect hereto.
Other
32. Any application as to costs arising from these proceedings (including any application for reserved costs and any application for contribution to the costs of the Independent Children’s Lawyer) must:
(a) Be made in proper form, by way of an Application in a Proceeding or Response to Application in a Proceeding as applicable;
(b) Be made within 21 days of the date of these orders;
(c) Set out with particularity the precise orders sought;
(d) Be accompanied by an affidavit setting out:
(i) The evidence relied upon in support of the application, including annexing, where applicable, copies of the relevant costs agreement and invoices;
(ii) The means by which the costs sought have been calculated; and
(iii) Irrespective of the basis upon which the costs are sought, a calculation of the costs sought in accordance with the scale set out in Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2)(Family Law) Rules 2021 (Cth).
AND IT IS NOTED that any such application will be listed for hearing on at 10:00am on 23 May 2025.
33. The parties each be at liberty to file an affidavit in response to any costs application made by the other party or the ICL by no later than 7 days after receipt of such application.
34. No later than 7 days prior to the date upon which any costs application filed is listed for hearing, the parties each file and serve a Case Outline document setting out a summary of argument in relation to the issue of costs which addresses the factors set out in section 117 of the Family Law Act 1975 (Cth).
35. The appointment of the Independent Children’s Lawyer be discharged upon the finalisation of all costs applications and appeals arising from these proceedings.
36. All extant applications are otherwise dismissed.
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
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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