Illgen and Yike

[2016] FamCA 181

FAMILY COURT OF AUSTRALIA

ILLGEN & YIKE [2016] FamCA 181

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – where the mother sought an adjournment on the morning of the hearing – where the father and the Independent Children’s Lawyer oppose the adjournment application – application for adjournment dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Illgen

RESPONDENT: Mr Yike

INDEPENDENT CHILDREN’S LAWYER: Ms Ryan

FILE NUMBER: PAC 6006 of 2008

DATE DELIVERED: 21 March 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Carew J

HEARING DATE: 21 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cairns

SOLICITOR FOR THE APPLICANT: Gonzalez & Co

RESPONDENT – LITIGANT IN PERSON:: Mr Yike

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Mahony

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Ryan of Legal Aid NSW Parramatta Family Law

Orders

1. Leave granted to Mr Cairns of counsel to make an oral application for an adjournment.

2. The mother’s application for adjournment is dismissed.

3. The mother attend in person tomorrow at 10.00am Tuesday, 22 March 2016 to commence the trial.

4. The mother bring the child, B Yike also known as B Illgen, born … 2007 with her and present him to the Child Dispute Services of the Court by no later than 9.45am Tuesday, 22 March 2016.

5. Leave is granted to Mr Cairns of counsel to withdraw from the proceedings.

Notations

1. Mr Cairns is to advise the mother’s instructing solicitor of today’s orders and that there be attendance by the legal representative on record for the mother.

2. Mr Cairns of counsel has given an undertaking to take all reasonable steps to cause the original affidavit of Ms Illgen sworn on 20 March 2016 to be filed within 7 days.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Illgen & Yike 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 PARRAMATTA

FILE NUMBER: PAC 6006  of 2008

Ms Illgen

Applicant

And

Mr Yike

Respondent

REASONS FOR JUDGMENT

1. This is an application by the mother to adjourn the trial dates for the application commenced in 2012 by her and responded to by the father.  The trial dates were allocated from a pool of cases awaiting trial on 18 February 2016. 

2. The father, in his material, deposes to having received his notice of trial on 19 February 2016.  The mother has had legal representation from her current solicitors who have been on the record since 29 August 2014.  I have no reason, therefore, to come to a conclusion other than that the mother, through her solicitor, was aware of the allocation of these trial dates on or about 19 February 2016.  Indeed, her solicitor, Mr Gonzales, attended a compliance check for this matter last Monday, 14 March 2016, when each of the parties were granted an extension of time for compliance with trial directions made in July 2015 until last Friday.

3. The father has sought leave, and been granted leave, to rely on an affidavit filed by himself this morning.  The mother, in her application for adjournment, relies on the fact that she and her family have relocated to Canberra.  She says that she relocated to the Canberra area in or about January 2016, and that she has now commenced new employment on 8 March 2016 and she is on probation for a period of six months.  She says that she is concerned that if she takes time off for the purposes of this trial, that she will put her employment at risk.  She says that she has no annual leave owing to her, given that she has only recently commenced employment.

4. The impression that she gives from her material is certainly that she and her family moved to Canberra in January 2016.  This is at odds with Exhibit 2, which is the record from the C School in Western Sydney, a school attended by the child, the subject of these proceedings, B, in that it would appear that he had been attending that school at least up until 16 February 2016.  Exhibit 2 lists the days absent from school.  I infer, therefore, that the child attended school up until that time, that being a day which is not included along with other days that he was absent. 

5. Nowhere in the mother’s material does she give evidence as to what attempts she has made, if any, to take time off work in order to appear at this trial.  This is a matter that has been in the court system since 2012 and, most concerningly, B is not having any time with his father despite there being previous orders made that B have the opportunity to spend time with his father.  This is a matter that requires a hearing.  The mother has known that the listing of trial was a likely event, given that it has been in what is called a pool of cases awaiting trial for many months. 

6. I dismiss her application for adjournment.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 21 March 2016.

Acting Associate: 

Date:  24 March 2016