Application to Adjourn Family Law Proceedings

Application to Adjourn Family Law Proceedings

Introduction

An application to adjourn family law proceedings must be based on valid grounds.

When considering an application to adjourn family law proceedings, the family court will consider in the contact of the relevant application, its duty to bring an end to parties’ financial relationships as far as practicable (s. 81, FLA 1975 (Cth)).

That duty, which applies too when the court is considering an application to adjourn family law proceedings, is supported by the stated main purpose of the Family Law Rules which is “to ensure that each case is resolved in a just and timely manner” (Rule 1.04 Family Law Rules 2004 (Cth)). The Court is required to apply the Rules in such a way that “gives an appropriate share of the court’s resources to a case, taking into account the needs of other cases (Rule 1.07 (e) Family Law Rules (2004 (Cth)).

The Rules are required to be applied in a manner that “promotes the saving of costs” (Rule 1.07 (d) Family Law Rules (2004 (Cth)).

Recent Case Law

In the case of Strahan & Strahan [2019] FamCAFC (21 February 2019), the Full Court of the Family Court of Australia dismissed an appeal by the Wife against orders made by the trial judge, approving the order made by the trial judge that had dismissed the Wife’s application to adjourn family law proceedings.  In that case, trial dates had previously been vacated on nine (9) occasions.

There had been ten previous appeals in the proceeding and by March 2017, the parties had spent in aggregate some $35 Million in legal fees. The Wife asserted that the refusal of the trial judge to adjourn the trial date had effectively shut her out of the family law proceedings.

However, the Wife had been on notice for five (5) months that the Husband was seeking family law property orders that the trial proceed with the Wife undefended if the Wife failed to prepare for trial.

Court Analysis

The Wife’s application for adjournment was heard on the first day that the matter was set down for trial. The Wife was not present in Court. The Court had regard to the fact that the Wife had only given her Solicitor and Counsel appearing at that hearing instructions to argue the application to adjourn family law proceedings. She had evidently not prepared for the trial in the event that the adjournment was not allowed.

The Full Court upheld the decision of the trial judge not to allow any adjournment trial taking into account the following considerations which the Full Court considered outweighed any injustice to the Wife:

• The litigation history, including the various solicitors’ firms that the Wife had instructed throughout the matter;
• The impost upon public resources;
• The impact upon other litigants seeking to avail themselves of the Court’s services;
• The need to bring to an end the parties’ financial relationship.

The Full Court said that the Wife had not been shut out of the proceedings by any order made by the trial judge. Instead, the decision of the Wife not to appear personally or by her Counsel at the trial of the property proceedings had been entirely the Wife’s decision.

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