Saidov & Saidov [2025] FedCFamC1A 49 (19 March 2025)

IT IS NOTED that publication of this judgment by this Court under the pseudonym Saidov & Saidov has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons explain why this appeal is summarily dismissed.
2. Proceedings between the parties in respect of their children under Pt VII of the Family Law Act 1975 (Cth) ("the Act") have been on foot since 2020, while property settlement proceedings under Pt VIII of the Act were initiated in 2021.
3. The trial of the parenting cause began in April 2024. It was originally listed for four days but it has endured for much longer and is still part-heard.
4. On 6 February 2025, the trial was listed for its tenth day of hearing. The mother was not present at Court that day, though she was represented by counsel who applied for an adjournment, which the primary judge refused and gave ex tempore reasons.
5. The mother's absence precluded the continuation of her cross-examination in the trial. The father then applied for interim parenting orders reversing the children's residence (at [200]). His application was supported by the Independent Children's Lawyer ("the ICL") but opposed by the mother's counsel. Having heard from the parties and the ICL in respect of the evidence already adduced over the preceding nine days of trial, the primary judge granted the father's interim application and delivered reasons for judgment the following week.
6. Interim orders were made for the children to live with the father (Orders 1-2), for recovery orders to issue if the mother refused to surrender the children to him (Orders 3-7), and for the children to thereafter spend time with the mother (Order 8). The primary judge also adjourned the trial for another week (Order 10) to take the evidence of the court child expert and the final submissions to conclude the trial (at [199(f)]) and listed the proceedings for further interim hearing the week after (Order 11), in the event that proved necessary due to final judgment being reserved for some time longer (at [201] and [205]).
7. Those orders were overtaken by more interim orders made on 14 February 2025, which provide for the father to have sole parental responsibility for the children (Order 4), for the children to live with the father (Order 5), and for the children to spend time with the mother at times and upon conditions agreed between the parties and the ICL (Order 6).
8. On 6 March 2025, the mother filed an appeal from all orders made on 6 February 2025 (NAA 87/2025). The appeal was promptly listed for hearing on 19 March 2025 to afford the mother the chance to explain why the appeal should not be summarily dismissed on account of it having no reasonable prospect of success (s 46(2) and s 46(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("the FCFCA Act")). Her submissions failed.
9. The appeal from the order dismissing the mother's application for an adjournment has no chance of success at all because the refusal of an adjournment is not a "judgment" from which any appeal validly lies (s 26(2)(b)(ii) of the FCFCA Act).
10. The appeal from the interim parenting orders is incompetent because those orders no longer exist. They were discharged by this order made by the primary judge on 14 February 2025:
    1. All previous orders with respect to parental responsibility, time and communication be discharged.
11. The mother has separately appealed from the interim parenting orders made by the primary judge on 14 February 2025 (NAA 101/2025), which appeal will be heard in due course.
12. Upon dismissal of the appeal both the father and the Independent Children's Lawyer ("ICL") sought their incidental party/party costs, on the basis the appeal was wholly unsuccessful, as is evident from its summary dismissal. The father sought costs fixed in the sum of $601.10, while the ICL sought costs in the fixed sum of $436.
13. The mother opposed the applications for costs essentially on two bases: first, that her appeal was meritorious; and secondly, her experience of financial hardship.
14. As to the first submission, the mother's submissions about the merit of the appeal are rejected, as these reasons already explain why the appeal had no merit at all.
15. As to the second submission, few details were provided by the mother as to her current financial circumstances. Nonetheless, having regard to the modest assessment of the costs sought by the father and the ICL, her complaint of financial hardship is outweighed by the lack of merit enjoyed by the appeal. The mother's submissions did not engage s 117(4)(b) of the Act in respect of the ICL's application.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.