Navigating Adjournments in Family Law Proceedings: Balancing Efficiency and Fairness

In the family law jurisdiction, requests for adjournments are not uncommon. A family lawyer in Melbourne can help guide clients through these applications and ensure their interests are fairly represented. Whether sought due to late preparation, unexpected developments, or challenges with representation, the decision to grant or deny an adjournment lies within the discretionary power of the Court. That discretion, however, is not exercised in a vacuum. It must be applied in the context of the Family Law Act, relevant procedural rules, and the overarching objective to facilitate the just, timely, and cost-effective resolution of disputes.

The Judicial Imperative: Resolving Matters Without Delay

The courts have made clear that delays in legal proceedings can undermine the integrity of the justice system. In Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, the High Court stressed the importance of avoiding unnecessary delay. This principle has been adopted within the family law sphere, notably in Jinson & Fletcher (No. 2) [2015] FamCA 1153, where the Family Court emphasised that the public’s confidence in the legal system is diminished when matters are not dealt with expeditiously.

When Children Are Involved: The Primacy of Best Interests

In parenting matters, the lens through which adjournment applications must be assessed is that of the best interests of the child. The need to protect children from protracted litigation has been highlighted in multiple decisions.

In Denman & Caruso (No. 4) [2019] FCCA 3922, Judge Obradovic stated:

“It is in [the children’s] best interest. They have been subjected to a number of interventions. Child A particularly has been subjected to some very invasive procedures as a result of the complaints which have been made.”

Similarly, in Calder & Andrews [2016] FamCA 54, Justice Cronin found:

“This is a case which needs a resolution. These children have the right to have their life organised in the future. On that basis, an adjournment would not achieve anything.”

These cases demonstrate that the courts are increasingly reluctant to grant adjournments in parenting matters where delay could harm a child’s wellbeing or stability.

Complex Litigation and Repeated Adjournments: Strahan & Strahan

The decision in Strahan & Strahan [2019] FamCAFC 31 exemplifies the Court’s resistance to adjournments that contribute to excessive delay and the misuse of judicial resources. In this matter, the Wife appealed a decision refusing her application to adjourn the trial. The Full Court ultimately dismissed her appeal and upheld the trial judge’s decision.

Notably, the trial dates had been vacated nine times previously, and by March 2017, the parties had collectively spent approximately $35 million on legal fees. The case had also seen ten prior appeals over the course of ten years. Despite the Wife's argument that the refusal to adjourn effectively excluded her from the proceedings, the Court found that she had been on notice for five months that the trial would proceed if she failed to prepare.

On a previous occasion, where the Court had granted an adjournment for five months, Austin J stated:

“I am satisfied the past eleven years of litigation have afforded the wife sufficient opportunity to discover all that she would want in respect of the husband’s financial affairs.”

On the first day of trial, the Wife was not in attendance. Her legal representatives were instructed solely to argue for an adjournment, with no preparation for the trial itself should the application be denied. The Court found this approach insufficient and upheld the decision to proceed.

In doing so, the Full Court considered the following factors to outweigh any injustice to the Wife:

• The prolonged and litigious history of the matter, noting that the matter had been “littered with indulgences”;
• The burden placed on public judicial resources and the “public purse”;
• The impact of delay on other litigants awaiting the Court’s time; and
• The pressing need to bring finality to the parties’ financial relationship.
• This case is a stark reminder that the Court's resources are finite, and adjournments, particularly repeated ones, must be justified against the broader interests of justice and efficiency.

Self-Represented Litigants: Additional Complexity

The presence of a self-represented party frequently complicates the Court’s consideration of an adjournment. Many litigants in the Family Court appear without legal representation, which can lead to delays due to a lack of familiarity with legal processes.

In such circumstances, the Court must strike a balance between two fundamental principles:

Procedural fairness to the self-represented party; and Timely justice for the opposing party and the system as a whole.

As Justice Cronin stated in Calder & Andrews:

“Legal representation in every court in Australia is a privilege, not a right. There are many people in this community who have to proceed on the basis that they have to do the best they can, obviously with the assistance of the Court.”

Where a litigant has had a fair opportunity to prepare and still seeks an adjournment, the Court will closely scrutinise the justification. In Denman & Caruso (No. 4), Judge Obradovic noted:

“The mother has had ample opportunity to put on her trial material. She is more than articulate and intelligent, she understands the process.”

Courts are increasingly cautious not to allow self-representation to become a de facto basis for delay, particularly when there is evidence of prior opportunities to comply with procedural requirements.

Costs Implications of an Adjournment

If the Court is minded to grant an adjournment, this does not remove the risk of adverse costs consequences. The party seeking the adjournment may be susceptible to a costs order being made against them.

Part XIVC of the Family Law Act 1975 provides that each party to proceedings is to bear their own costs. However, if the Court is of the opinion that there are circumstances that justify it, the Court may make an order for costs that it considers just. The purpose of an order for costs is to compensate a party for expenses incurred. Costs orders are not a penalty.

Courts may consider:

• Whether the application for adjournment was made at the last minute;
• The reasonableness of the delay;
• Whether the other party incurred legal costs unnecessarily; and
• The impact on court time and judicial resources.

Medical Certificates

In some instances, litigants rely on medical certificates to support an application for adjournment or explain non-attendance. However, the recent decision of Novikov & Novikov [2024] FedCFamC1A 56, adopting the reasoning in UTSG Pty Ltd v Sydney Metro (No. 5) [2019] NSWLEC 107 at [42]–[51], made clear that a medical certificate must do more than merely assert unfitness.

The Court stated that a satisfactory medical certificate must:

• State why, and not just whether, the medical condition will prevent a litigant from participating in a court hearing;
• Identify the medical condition, its severity, and its expected duration; and
• Be signed and dated, with the medical practitioner clearly identifiable.

In Waverley Council v Bobolas (No. 3) [2015] NSWLEC 100, McColl JA opined at [221]:

“A medical certificate relied upon to demonstrate a litigant is unable to attend court must address the critical question whether, and if so why, the medical condition would prevent the [litigant] from travelling to the Court and participating effectively in a court hearing.”

Accordingly, if a medical condition may make it difficult to attend Court, it is important to ensure that any supporting medical certificate addresses the critical question directly and contains sufficient detail.

If you are in regional Victoria, Bentleys Law offers experienced family lawyer services, including in Geelong and Bendigo.

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Conclusion: Adjournments Must Be Justified and Exceptional

The modern family law landscape places a premium on procedural efficiency, fairness, and child-focused outcomes. Adjournments, while sometimes necessary, are no longer routinely granted. Judicial discretion in this area is exercised with an eye toward finality, resource management, and the impact on children and other litigants.

Parties seeking an adjournment must be prepared to demonstrate genuine and compelling reasons, particularly where delays have been ongoing or where public and private resources have already been extensively consumed. Courts will not hesitate to refuse adjournments that frustrate the timely administration of justice, as Strahan & Strahan makes abundantly clear.

For legal practitioners and litigants alike, the message is unmistakable: be ready, be prepared, and be mindful of the broader consequences of delay. As summarised in Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116 at [51] per Newnes JA, Pullin and Murphy JJA agreeing:

“In a curial setting there is no absolute right to have an action heard and determined on its merits. What the rules of procedural fairness require is that each party be provided with a reasonable opportunity to be heard.”

If you’re facing family law proceedings, seeking advice from an experienced family lawyer ensures you are prepared and aware of the possible consequences. If you need the services of family lawyers in Malvern, Preston, or Brighton, Bentleys Law is here to help.

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