Forkan and Forkan

[2013] FamCA 34

FAMILY COURT OF AUSTRALIA

FORKAN & FORKAN [2013] FamCA 34

FAMILY LAW - PRACTICE AND PROCEDURE – Hearing

Family Law Act 1975 (Cth)

APPLICANT: Ms Forkan

RESPONDENT: Mr Forkan

FILE NUMBER: SYC 4160 of 2011

DATE DELIVERED: 21 January 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 21 January 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Hearl

RESPONDENT: No appearance

Orders

1. The husband's application for an adjournment is stood over for interim hearing before Justice Fowler at 9.30 am on Friday, 8 February 2013;  estimated hearing time half to one and a half hours.

2. The legal representative of the wife and my Associate are to notify the husband of the adjournment and provide a brief summary of the comments I have made.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Forkan & Forkan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4160  of 2011

Ms Forkan

Applicant

And

Mr Forkan

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application by Mr Forkan, a party to the proceedings, for an adjournment of the hearing date and an adjournment of this mention date.  At the hour of 9.30 am, the time at which this matter was listed for mention, he did not appear.  It is now 10.00 am and he does not appear.  An attempt has been made to telephone him at a number provided.  He does not answer.

2. The Court has received a letter from him dated 18 January 2013 in which the adjournment is sought.  Attached to that letter are some documents in the form of statements of account.  The Court has not read them nor will it receive them unless they are properly tendered into evidence and Mr Hearl has had the opportunity of either objecting to them or consenting to their tender.

3. The matter has been fixed for hearing for some time;  indeed the dates were initially fixed in August.  They had to be changed when it was ascertained that the date which was fixed was indeed a Public Holiday and the matter is now listed in February.

4. Mr Forkan claims in his application for an adjournment that he has a problem with a disorder and that he will not recover for a period of six months.  He has not adduced any evidence properly before the Court in relation to his medical condition other than his own statement and he is not an expert in the area.

5. In the circumstances the application is presently denied.

6. An opportunity will be given to Mr Forkan to properly put before the Court and be before the Court for the purpose of making an application for an adjournment but it will be necessary for him to bring to the Court at a minimum affidavit evidence of his treating medical practitioners as to his state of health, their diagnosis of him, their treatment of him and their prognosis for his condition and a statement of whatever it is suggested renders him unable to attend Court for one day for the purpose of this matter being determined.

7. It is noted that in further support of the refusal at this time of the application for an adjournment that the wife who is the primary carer for the children of the marriage is also subject to a dispute with Mr Forkan concerning the amount of child support being paid and is living in rented premises.  Mr Forkan is living in owned premises and his payments on a weekly basis or monthly basis are a contribution to his acquisition of equity whereas the payments currently made by the wife will be lost.

8. It is inappropriate that the wife not have perhaps the same opportunity by the resolution of this matter to consider whether she can purchase property and acquire equity or acquire equity in property.

9. It is a serious matter when a matter has been fixed.  The dates before this Court are difficult to procure and they are not lightly abandoned.

10. They will vacate dates if there is proper evidence before the Court which the Court is satisfied would give rise to an injustice if they were not abandoned.

11. In the circumstances liberty is given to Mr Forkan to repeat his application for an adjournment and adduce proper evidence in relation to it before this Court at 9.30 am on Friday, 8 February 2013.

12. I direct that the solicitor for the wife make that notification, and I request my Associate to make the like notification, of the adjournment and perhaps a brief summary of the comments I have made.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 21 January 2013.

Associate: 

Date:  5 February 2013