Yanev & Cox (No 2)
[2025] FedCFamC1F 381
•3 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Yanev & Cox (No 2) [2025] FedCFamC1F 381
File number: BRC 14465 of 2023 Judgment of: CAREW J Date of judgment: 3 June 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Ex tempore – Oral application by the applicant mother to adjourn the trial following her legal representatives being given leave to withdraw on day three of the trial – Where the mother’s cognitive ability falls in the borderline range – Where prejudice to the mother must be balanced with the principles for conducting child-related proceedings – Where the father has a criminal history of possessing and creating child exploitation material, some of which involved the subject child – Where the Court has serious concerns about the current living arrangements of the subject child with the mother – Where the Independent Children’s Lawyer is represented by counsel – Where a referral is made of the mother’s legal representatives to the Queensland Legal Services Commission – Where the application for adjournment is dismissed. Legislation: Family Law Act 1975 (Cth) s 69ZN Number of paragraphs: 23 Date of hearing: 3 June 2025 Place: Brisbane The Applicant: Litigant in person The First Respondent: Litigant in person The Second Respondent: Litigant in person The Third Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Murphy and Mr McDonald Solicitor for the Independent Children's Lawyer: Pippa Colman Family Law ORDER
BRC 14465 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS YANEV
Applicant
AND: MR COX
First Respondent
MRS B COX
Second Respondent
MR C COX
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
3 JUNE 2025
THE COURT ORDERS THAT:
1.Leave is granted to the applicant’s solicitor and counsel to withdraw from the matter.
2.Leave is granted to the applicant to make an oral application for the adjournment (“the adjournment application”) of the final hearing of this matter.
3.The adjournment application is dismissed.
IT IS FURTHER ORDERED THAT:
4.Freedom Family Law, and solicitor, Ms Caitlin Stannett be referred to the Queensland Legal Services Commission for consideration of what, if any, investigation, disciplinary action, or educative process might be undertaken into the apparent failure to properly prepare the applicant’s case for the final hearing listed for six days.
5.The Principal Registrar of the Federal Circuit and Family Court of Australia (Division 1) is directed to send a copy of the following documents to the Queensland Legal Services Commission:
(a)Order made on 31 January 2025;
(b)Order made on 3 June 2025;
(c)Affidavit by applicant filed 15 May 2025;
(d)Affidavit by applicant filed 19 May 2025;
(e)Affidavit by Mr D filed 6 May 2025;
(f)Affidavit by Mrs E filed 6 May 2025; and
(g)The ex tempore reasons for judgment in Yanev & Cox (No 2) [2025] FedCFamC1F 381.
NOTATIONS:
A.The covering letter sent by the Principal Registrar of the Federal Circuit and Family Court of Australia (Division 1) to the Queensland Legal Services Commission should state only the following:
At the direction of the Honourable Justice Carew please find a copy of the following documents:
(a)Order made on 31 January 2025;
(b)Order made on 3 June 2025;
(c)Affidavit by applicant filed 15 May 2025;
(d)Affidavit by applicant filed 19 May 2025;
(e)Affidavit by Mr D filed 6 May 2025;
(f)Affidavit by Mrs E filed 6 May 2025; and
(g)The ex tempore reasons for judgment in Yanev & Cox (No 2) [2025] FedCFamC1F 381.
ADDITIONAL NOTATIONS:
B.There is no Court by the name “Federal Circuit and Family Court of Australia”. This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).
C.The design of the seal affixed to this Order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
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 Yanev & Cox has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
In addition to the use of pseudonyms for the parties, other changes have been made to the published judgment to protect the identity of a party or a witness. Such changes (other than when a letter is used instead of a name or an address) are apparent on the face of the judgment by the use of square brackets.EX TEMPORE REASONS FOR JUDGMENT
CAREW J:
The applicant mother, Ms Yanev, finds herself in a very difficult position in that her legal representatives were given leave to withdraw from the case on day three of the proceedings. Initially, the mother said that she wanted to proceed, but out of an abundance of caution, I stood the matter down so that she could obtain advice from a duty lawyer. Upon returning late this afternoon, having spoken to the duty lawyer, not surprisingly, the mother makes an application for an adjournment.
The adjournment is not opposed by the first respondent father, Mr Cox, who represents himself. Nor is the adjournment opposed by his parents, Mrs B Cox and Mr C Cox, who are the second and third respondents respectively (collectively “the paternal grandparents”) and also represent themselves. Although the paternal grandmother clearly did so with some reluctance, stating that she had some concerns, and those concerns are certainly understandable.
The Independent Children’s Lawyer (“the ICL”) supports the adjournment on the basis of a concern about the ability of the mother to conduct her own trial in circumstances where, for the first time this afternoon, it was brought to my attention a document (that is not in evidence but is an annexure (MBC-2) to the paternal grandmother’s affidavit of evidence-in-chief filed on 13 May 2025), being a report from a psychologist dated 21 January 2022 prepared in relation to earlier proceedings involving the father and the mother conducted over 2018 to 2022. The only part of that report that has been highlighted by the ICL appears at page 39 of 184 of the affidavit, which expressed a view that the mother’s cognitive ability falls in the borderline range. The submissions of the ICL were very much focused on the concern about the ability for the trial to proceed fairly. That is certainly an understandable position to take.
However, I must balance any prejudice to the mother with the principles for conducting child‑related proceedings, which are set out in section 69ZN of the Family Law Act1975 (Cth), and include the following: the first principle is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings; the third principle is that the proceedings are to be conducted in a way that will safeguard (a) the child concerned from being subjected to or exposed to abuse, neglect or family violence, and (b) the parties to the proceedings against family violence; and the fifth principle is that the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible. The relevant part of that is without undue delay.
These proceedings were set down for trial with trial directions made by me on 31 January 2025. As earlier noted, the first, second and third respondents, represent themselves in the proceedings, and because of the unavailability of the Family Report writer, Ms F, this trial commenced on 20 May 2025 and was adjourned part-heard to 2 June 2025.
The mother was cross-examined yesterday, largely by counsel for the ICL, although the father may have had one question for the mother, and the paternal grandmother had a number of questions. Today, I have heard evidence from Mrs E, who is the mother’s mother-in-law, and her evidence is now complete. There is only one remaining witness in the mother’s case, namely, Mr D, the mother’s husband, and then the Court would move into the father’s case. He is the only witness in his case, and each of the paternal grandparents are also the only witnesses in their cases. This matter had been listed for trial for four days this week, with two days next week reserved should that need arise.
I have raised on more than one occasion during these proceedings my growing concern for the welfare of the child the subject of the proceedings, X, (“the child”) who is 12 years of age but who suffers from a range of significant mental health issues, including foetal alcohol syndrome disorder (“FASD”) and Autism-Level 2. The child has been living with the mother, Mr D, and their three-year-old daughter, G, since 9 December 2023. Prior to that, the child lived with the paternal grandparents and the father.
The father was convicted on [redacted] 2024 on his own plea of possession and creation of child exploitation material, some of which involved the child. The statement of facts which were presented in his sentencing hearing are set out on pages 230 to 234 of 426 of a tender bundle which I propose to receive into evidence for the purpose of this application for adjournment. The father was sentenced to a term of imprisonment for one year, which was suspended for two years, and he was placed on probation for two years. I have no evidence from his probation officer or from any treating psychologist. Given his conviction, I expect he may well have been required to be on the register pursuant to the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), but no mention has been made of this. In relation to the father’s history, suffice to say that at this stage of the proceedings, the impression I have is that the paternal grandparents have minimised the seriousness of the father’s offending, simply saying, it seems, that it was a one-off and out of character in letters of support for his sentencing hearing. Noting these are all, of course, very preliminary views based on cross-examination and matters to which my attention has been drawn so far in the trial, it seems that the paternal grandmother may have been more strident in her dismissal of the father’s guilt during interviews with the Department of Families, Seniors, Disability Services and Child Safety (“Child Safety”), as it is now known. This information comes from the proposed tender bundle to which mention has been made at various stages throughout the proceedings, and for the purposes of this adjournment hearing, I will receive the tender bundle into evidence and it will be marked Exhibit 1, which includes that statement of facts.
The statement of facts is alarming, and if the paternal grandparents have not already read that, they should do so. Contrary to their suggestions and their letters of support for their son that it was a one-off, the evidence supports that this was not a one-off. The photographs taken of the child were in 2018. The other substantial number of images and videos of other children were later than that, in about 2022. It involves real children, including the grandchild of the paternal grandparents. It also seems that the father may have broken his bail conditions by attending the paternal grandparents’ property to collect personal items. None of this, of course, has been put to the paternal grandparents, but this is taken from the tender bundle which is now before me for the purposes of the adjournment application. It seems that the paternal grandparents have admitted to this but contended that the child did not see the father at times he attended the property, contrary to his bail conditions in those criminal proceedings.
During police interviews, the father initially suggested that the paternal grandmother may have taken photographs of the child for some medical purpose. There were also concerns expressed by Child Safety and/or police that the paternal grandmother had interfered in the investigation of the father by telling the child not to speak to the police.
The paternal grandparents did not mention the risk the father poses in their evidence-in-chief. Save for referring to his conviction, no mention of the offending behaviour or the possible circumstances of that occurring was mentioned in their evidence-in-chief. The father did not mention his offending behaviour at all, nor any steps he had taken to address his conduct. Despite the fact that he is on probation and, as such, I assume he is seeing a probation officer and a psychologist, there is no evidence of that before me. The Family Report writer raised grave concerns about the paternal grandparents’ willingness or ability to protect the child from the father should they spend unsupervised time with her. I share those concerns at this time, but this is a preliminary part of the hearing.
The mother says she suffers from anxiety, depression and post-traumatic stress disorder. The mother has a history of alcohol abuse, leading to the child having FASD. I have no psychiatric evidence about the mother either, other than references just made by the ICL to a psychologist report done at some point.
The mother is also Mr D’s carer. He has schizoaffective disorder, a condition which can cause hallucinations, delusions and manic or depressive behaviour. He also suffers from anxiety and depression. During her cross-examination, the mother conceded that, contrary to the ‘happy family’ impression she sought to convey in her evidence-in-chief, she and Mr D separated last year, she says in about August 2024, because of Mr D’s abuse of cannabis. Mr D threatened to hang himself and the police apparently attended to undertake a welfare check. It seems Mr D may have been taken or at least referred to hospital. The mother complained at the time about Mr D’s controlling behaviour and financial abuse. The mother downplayed those complaints when asked about them during cross-examination. The mother said they reconciled a matter of weeks later, in or about September 2024, on condition, she says, that Mr D does not consume cannabis.
The date of reconciliation, I must say, is doubtful at this stage, given that in January 2025, when the trial directions were made, one of the issues identified for the Court’s determination indicated that the mother and Mr D were no longer together. Despite this apparent condition (i.e. that he not consume cannabis), Mrs E gave evidence that it was her understanding that the condition was only, or might have as an alternative been, that Mr D simply cut down on his cannabis use. By reference to an attendance in March or April this year at his GP (again, this is taken from the tender bundle), Mr D had apparently admitted to using marijuana on the day of his appointment at his doctor and complained of experiencing delusions and hallucinations. The mother said that she did not know about that when asked in cross-examination, nor did Mrs E, and yet she said that she has a very close relationship with her son who tells her everything. Well, she knew nothing about the delusions and hallucinations that Mr D admitted to experiencing in March or April of this year, only a few months ago.
Mr D takes anti-psychotic medication, which seems to be essential for the maintenance or stability of his conditions. The mother said that she supervised his consumption of his medication. However, this seems not to be the case. Mrs E said that she can recall the mother and Mr D saying that they ask each other whether they have taken their medication, which indicates that they do not observe each other take medication, and, indeed, the mother conceded that G consumed a quantity of Mr D’s medication at some point. I am not sure when that was. G ended up in hospital.
During Mrs E’s evidence, she gave evidence that her son was involved in an altercation with her now-deceased husband, who died about four years ago. The altercation involved police attendance and Mr D’s removal from the premises by police for several hours. The police obtained either a protection order against him for the protection of Mrs E and her husband, or some form of direction was given to that effect. Mrs E was surprisingly vague about something that she said was an unusual occurrence. She said that this incident, as best she could recall, caused her husband to ask her to call police and involved a dispute about money, namely, Mr D spending too much and not contributing to the household expenses. I note that one of the possible symptoms of his condition is manic behaviour. Whether or not that explains that behaviour or not, I do not know. Mrs E also divulged that Mr D’s previous partner, Ms H, with whom he has a child, J, who is now about 12, accused Mr D of family violence, including rape, and despite them being in Court proceedings for a number of years, she said that Ms H and J have disappeared.
As mindful as I am of the difficulties the mother finds herself in now without legal representation, I must place greater priority on the child’s safety, and as I have serious concerns about her current living arrangements, I do not intend to grant the adjournment.
The ICL is represented by counsel, who will no doubt continue to do what she has done already today, namely, focus in her cross-examination on the child’s best interests. Indeed, as already noted, the Family Report writer has already been made available for cross-examination, and, from recollection, I do not think the counsel for the mother had any questions for the Family Report writer. So, the prejudice to the mother is not as great as it would have been if her legal representatives had withdrawn on the first day of trial, because the Family Report writer has already been made available for cross-examination, and she has been cross-examined, and the mother and Mrs E have been cross-examined.
It is not a case where the mother will be in a position where no cross-examination or focused cross-examination will be made of the respondents because we are fortunate in having counsel representing the ICL who will be focused on questions about matters concerning the child’s best interests. It is certainly far from ideal to have to proceed under these circumstances, and no doubt that does present, as I have mentioned, difficulties for the mother, but this is a case in which all the parties other than the ICL are self-represented.
The ICL has already raised with me her concern about the state of the evidence, she having only been appointed as a replacement ICL on 20 May 2025, and she is doing her best to obtain evidence which has not yet to date been obtained. I do not know why some of that is the case.
While I do have concerns about evidence that is lacking in this case, my greater concern is the child’s current living circumstances, and it is for those reasons that I feel that the matter must proceed as best it can so that I can have as much information as I can about this little girl and what to do in the circumstances. So, the application for adjournment is dismissed.
REFERAL OF THE APPLICANT’S SOLICITOR
I have indicated that I propose to refer the mother’s solicitor to the Queensland Legal Services Commission because of a concern I have about the failure to properly prepare the mother's case. Whether or not that is the case, and whether or not that is a finding that the Queensland Legal Services Commission ultimately make is, of course, a matter for them, but the mother’s two affidavits upon which she relied failed to address some very serious matters which given the identification of the issues for trial, her lawyers must have been aware of, and that evidence would need to be provided addressing those issues.
It was suggested by Ms Bassano, counsel for the mother, just prior to her departure from the Court, that her instructing solicitor sought to suggest that because information contained in subpoenaed material was not known to her at the time of the filing of the mother’s affidavit material, that that somehow addressed some of the concerns I have raised throughout the trial. I certainly do not understand why, if that were the case, leave was not sought to adduce some further evidence from the mother. Again, those are matters for the Queensland Legal Services Commission.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 3 June 2025
0
0
1