We all know the family court system is beset by long delays, but what if it’s actually you that wants or needs to delay your family court matter? Here’s a quick look at the process and some of the reasons which a family court might accept if you are seeking an adjournment in your family law matter.
The family court does have the power to extend timeframes and deadlines, using its discretion, after an application is made to the court by a party. Each case is assessed on its merits and there is no automatic guarantee that you will get an extension of time.
In a recent matter in the courts, Mudin & Bashir (pseudonyms), a mother wished to seek an adjournment of her final parenting hearing. The adjournment was granted, however notably not due the reasons she offered.
The mother had told the court that in the timeframe set, she would have difficulty attending face-to-face hearings because she was breastfeeding a newborn on demand and had no practical options for childcare for the five day hearing for her newborn and two other children. She said she’d had a difficult pregnancy and had therefore found it difficult attending to litigation matters, including applying for legal representation through the Commonwealth Family Violence and Cross Examination of Parties Scheme. She also told the court she had no access to a computer at home, making an online hearing impracticable for her.
But these practical reasons were deemed insufficient and the judge said, “I would not have granted an adjournment of the hearing for those reasons alone”. The reason the adjournment was granted was in fact because the judge determined that neither party was actually ready for a final hearing and neither party had properly complied with procedural orders. As such, orders were made granting the adjournment so that each party could comply with trial directions.
Applications for adjournment will usually only see a court change a court date in unforeseen or exceptional circumstances. Court dates are viewed as needing to be prioritised by parties and excuses such as needing to work or having a lack of childcare are not regarded as a valid excuse.
However, sometimes a court may adjourn a matter if reasons involve:
- Medical appointments if they can’t be changed (eg. with a hospital or a consultant),
- Pre-booked/paid holidays (however not if these are booked after awareness of a hearing date)
But for matters such as lacking childcare, the court simply expects you to make arrangements for the court event noting that parties are usually afforded plenty of notice of upcoming court dates. The court would also take into consideration the type of hearing that you are seeking to have adjourned. For example, a directions hearing may be able to be adjourned by the court for a short period of time whereas for a final hearing, the court may not be able to accommodate any adjournments.
Adjournments in matters involving family violence
As part of the family court’s case management power, it may grant adjournments in order to make sure parties all receive fair and equal access to justice. Some examples of reasons why courts often make adjournments in family violence matters include:
- to synchronise the civil matter with an associated criminal matter,
- to allow police to have more detailed discussions with victims etc,
- to clarify child and parenting arrangements,
- to obtain more information about the matter,
- to ensure procedural fairness,
- to facilitate when parties need interpreter or similar services,
- and sometimes because, if an applicant fails to attend court in their matter, it may be appropriate to adjourn in order to enable inquiries to be made about the applicant’s safety.
When no legitimate reason is given…
The courts are alert to situations where parties seek adjournments without a legitimate reason being provided. This raises the suspicion that the motivation may be to abuse court processes to continue family violence (aka “systems abuse”). For example, if a party seeks adjournments at short notice, initiates applications or makes cross-applications without good grounds, fails to appear at mentions and hearings, or evades service of orders.
When orders for adjournment are made in matters involving family violence, the court may make interim orders, directions or arrangements to cover the period of the adjournment.
If you wish to seek an adjournment…
First, ask other party (or their solicitors) if they’ll agree to adjourn to a new date, outlining your reasons why. If both parties agree they can separately write to the court or sign a joint letter asking for the adjournment. A judge then assesses the application but may still require that it go ahead as planned. Usually, though, when both parties agree, the court is more likely to agree to adjourn.
If you can’t get agreement from the other party, it’s necessary to submit a form, called an Application in a Case, to court well before the date of the hearing. This needs to be accompanied by an affidavit setting out the basis of why the adjournment is sought and what benefits would flow to you, the other party and the court (such as not wasting the court’s time or the costs of either party). The application must be received by the family court no later than 12 noon on the day prior to the date fixed for the court event, however you should file your Application in a Case as soon as you are aware of the circumstances that are causing you to seek an adjournment. If the event is listed before a judge, the request needs to be sent at the earliest possible time before the event. The application and affidavit are served on all parties. The other party can then object to an adjournment formally if they wish. It’s then up to the discretion of the court whether an adjournment is granted.
But be mindful that in making an application for an adjournment, you may incur additional legal expenses, and the possibility exists that the court will order the costs of the application and/or the other party’s costs to be paid by the person asking for the adjournment.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.