Saidov & Saidov (No 5)
[2025] FedCFamC2F 715
•23 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saidov & Saidov (No 5) [2025] FedCFamC2F 715
File number(s): CAC 493 of 2020 Judgment of: JUDGE PARKER Date of judgment: 23 May 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE –application to adjourn application for costs Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.06 Cases cited:
Aon Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Bulow & Bulow (No 2) [2022] FedCFamC1A 25
Cantwell & Cantwell [2017] FamCAFC 209
Daymond & Daymond (No 2) [2013] FamCA 552
Farrand & Mahdi (No 2) [2021] FamCA 168
Jingyi & Chao (No 3) [2023] FedCFamC1F 841
Queensland v JL Holdings Pty Ltd [1997] HCA 1; 189 CLR 146
State of New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118
Division: Division 2 Family Law Number of paragraphs: 9 Date of hearing: 23 May 2025 Place: Adelaide Counsel for the Applicant: Ms Pangallo Solicitor for the Applicant: Eastern Legal Counsel for the Respondent: Self-Represented 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:
23 MAY 2025
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 21 May 2025 is 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) 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 clearer and easier to read.
This matter is listed before the Court this day for determination of costs applications brought by the Father and the Independent Children’s Lawyer (‘ICL’) against the Mother following contested proceedings which were determined by way of orders made and judgment delivered on 16 April 2025. The factual background to this matter is set out in the reasons of 16 April 2025. These reasons should be read in conjunction with the judgment delivered on that date.
On 21 May 2025, the Mother filed an Application in a Proceeding seeking an adjournment of this hearing. The proposed adjournment is opposed by the Father and the ICL.
The Mother’s Application in a Proceeding outlined two bases for the adjournment application being, firstly, the fact that Mother has filed an appeal against the orders of 16 April 2025;[1] and secondly, that she is not currently represented and is in the process of obtaining legal representation.
[1] Proceeding number NAA218/2025.
The Court’s general powers of case management in rule 1.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) include the power to adjourn a court event. The Court also has the power to decline an adjournment.[2] It is well established that an adjournment should only be granted where it is in the interests of justice to do so.
[2] Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146.
As the High Court of Australia held in Aon Risk Servicesv Australian National University (‘Aon Risk’),[3] the expeditious dispatch of the business of the Court must be subordinated to the interests of justice. Their Honours also recognised that whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the Court is a publicly funded resource, inefficiencies in the use of which arising from the vacation or adjournment of hearings are to be taken into account. So too is the need to maintain public confidence in the judicial system.
[3] [2009] HCA 27; (2009) 239 CLR 175.
Relevant considerations as outlined in the applicable authorities, including Aon Risk and Queensland v JL holdings Pty Ltd,[4] include the following:
[4] [1997] HCA 1; 189 CLR 146.
(a)The interests of litigants in the particular case;
(b)The effect of an adjournment on court resources;
(c)The competing claims of litigants in other cases awaiting hearing;
(d)The importance in the proper working of the system of adherence to dates fixed for hearing;
(e)Whether the adjournment is sought for a reasonable period of time;
(f)Whether there is adequate reason given for the adjournment request;
(g)The prejudice that either party would suffer if the adjournment were or were not to be granted;
(h)Whether that prejudice could be met by a costs order;
(i)Any delay in making the adjournment application; and
(j)The importance of finality of litigation.
Applying these considerations to the present case, I note the following:
(a)The Mother relies on her extant appeal as a basis for the adjournment application. It is well established that a pending appeal does not necessitate the adjournment of an application for costs arising with respect to the same orders or matters to which the appeal relates.[5] I can see no reason why such a course is warranted in the particular circumstances of the present case.
[5] See, for example: Bulow & Bulow (No 2) [2022] FedCFamC1A 25; Daymond & Daymond (No 2) [2013] FamCA 552; Farrand & Mahdi (No 2) [2021] FamCA 168; Jingyi & Chao (No 3) [2023] FedCFamC1F 841.
(b)The orders under appeal are to be presumed correct until such time, if any, as the appeal court determines otherwise.[6] The Father, as a successful litigant, is entitled to pursue his application for costs arising from those orders.
[6] State of New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118; Cantwell & Cantwell [2017] FamCAFC 209 at [47].
(c)The length of the adjournment sought by the Mother is 28 days. The appeal will not have been determined by that time. The very first step in the appeal process following the filing of a Notice of Appeal, being the filing of a draft appeal index, is not due until 12 June 2025, some 20 days from today’s date. There will thereafter be a number of further steps to be undertaken in the appeals process before the appeal is listed, much less heard. There may also be a further passage of time between the appeal being heard and the date upon which it is determined. A 28-day adjournment would not address the fact of the pending appeal.
(d)If the matter were to be adjourned for a longer period, particularly for such as yet unknown period as would permit the appeal to be determined first, this would prolong and add uncertainty to what has already been an extremely long and protracted matter. This would be to the detriment of both parties, particularly the Mother, in circumstances in which the terms of the final property orders made on 16 April 2025 provide that payment to her of a cash sum representing a significant portion of her entitlements pursuant to those orders will not occur until after the determination of the costs application.
(e)I have been seized of this matter since early 2022, being a period of over three years, and I heard and determined the trial. I also presided over the various other hearings in relation to which costs are sought by the Father and the ICL. As a consequence, I have knowledge and recollections of the history of this matter and its various court events and an associated understanding of the manner in which the proceedings were conducted by each of the parties, all of which makes it appropriate that I hear and determine the costs applications if possible.
(f)I have only seven days remaining as a judge of this court. The consequence of an adjournment would be that a different judge with no existing familiarity with the matter would need to determine the costs application, which would unnecessarily complicate the application for the parties, likely leading to additional expense, and would place an undue burden on the scarce judicial resources of this court.
(g)The Mother’s adjournment application was filed too late to enable it to be listed prior to the hearing to which it relates, meaning that there was no opportunity for the Father or the ICL to avoid the costs of preparing for and attending at this hearing. In those circumstances, an adjournment of the hearing would almost certainly result in further costs applications being made by the Father and the ICL, thus increasing the Mother’s potential overall exposure with respect to costs.
(h)As to the Mother’s desire to obtain legal advice and representation, I have regard to the following:
(i)The affidavit filed by the Mother in support of the adjournment application indicated that she was in the process of reapplying for legal aid funding. I do not purport to know the outcome of the means and merits tests which would be applied by the Legal Services Commission of South Australia, being the relevant legal aid body, in relation to such an application. I observe, however, that the present applications are applications for costs against the Mother resulting from a judgment pursuant to which she was unsuccessful in circumstances in which there are orders providing for her to receive a payment of over $139,000, subject, of course, to the outcome of the current costs applications. In those circumstances the likely success of any legal aid application certainly cannot be assumed. In any event, the Mother indicated to the Court this day that what she actually intends is to obtain assistance from an ‘advocacy group.’
(ii)The Mother’s loss of her long-standing legal representatives occurred as a direct result of unacceptable conduct on her own behalf. Those lawyers were required to withdraw from acting for the Mother by virtue of their ethical obligations as officers of the court after she failed to disclose something to the Court which she had disclosed to them about her own conduct, being something that she was required by way of her disclosure obligations to divulge to the Court. Not only is this a circumstance entirely of the Mother’s own making, it is conduct which the Court cannot condone. Such conduct certainly does not justify the indulgence of an adjournment being granted to the Mother at the expense of the ability of the Father and the ICL to press their applications and at the expense of other litigants awaiting hearing time in this Court.
(iii)On 4 April 2025, the Mother filed an Application in a Proceeding seeking to adjourn the balance of what was then the part-heard trial in order to enable her to obtain legal representation. Since then, she has had a firm of solicitors file a Notice of Address for service on her behalf and subsequently withdraw, and the evidence before the Court suggests that a further set of lawyers has also been engaged by her.
(iv)Those lawyers were at least the fifth and sixth set of lawyers engaged by the Mother with respect to these proceedings, and both sets of lawyers were involved during the currency of the present costs applications. The Mother has had the opportunity to obtain both representation and advice. She was unable to explain her failure to do so today.
(v)Furthermore, the Mother was similarly fleetingly represented by a firm of solicitors in late March and early April 2025, being shortly prior to the final tranche of the trial, being the tranche which she sought to adjourn on the basis of her need for legal representation or her asserted need for legal representation. The reason for the Mother’s apparent ongoing unwillingness or inability to retain the lawyers that she engages on an ongoing basis is not known.
(vi)Given that the Mother has been asserting an intention to obtain legal representation and advice for many weeks but remains unrepresented despite the involvement of multiple firms of solicitors, I have no confidence that a further 28-day adjournment or, indeed, any adjournment, would lead to a different outcome in this regard.
(vii)On 21 May 2025, my chambers suggested by way of email that the Mother attend Court earlier this day to utilise the services of the duty lawyer. When the hearing commenced she sought time to consult with the duty lawyer, and the matter was stood down for over 90 minutes to enable her to do so.
Weighing up all of these considerations, I am not satisfied that it is in the interests of justice for the hearing to be adjourned. The Application in a Proceeding filed on 21 May 2025 is dismissed.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Parker. Associate:
Dated: 29 May 2025
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