Gibson & Cordingley

[2025] FedCFamC2F 251

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Gibson & Cordingley [2025] FedCFamC2F 251

File number:

CAC 1724 of 2022

Judgment of:

DEPUTY CHIEF JUDGE MCCLELLAND

Date of judgment:

21 February 2025

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENT – Where the father seeks an adjournment – Where the mother and Independent Children’s Lawyer oppose the adjournment – Where the reason for the adjournment is unmeritorious – Consideration of the overarching purpose – Where there is no entitlement to an adjournment – Waste of Court resources if adjournments are granted without cogent reasons – Oral application for adjournment dismissed.

Legislation:

Family Law Act 1975 (Cth) s 95

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04

Cases cited:

Alhalek v Quintiliani [2021] FCAFC 139

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Dahdah v Platinum Distributors Australia Pty Ltd [2023] FCAFC 65

Gabrielle v Abood (No 2) [2023] NSWCA 28

Zubair v Minister for Immigration and Border Protection [2017] FCCA 2905

Division:

Division 2 Family Law

Number of paragraphs:

9

Date of hearing:

21 February 2025

Place:

Sydney (via video link)

Counsel for the Applicant:

Mr Michie

Solicitor for the Applicant:

Jacqui Griffin Mobile Solicitor

Counsel for the Respondent:

Ms Clarke

Solicitor for the Respondent:

Operational Legal Australia

Counsel for the Independent Children’s Lawyer:

Ms Conte-Mills

Solicitor for the Independent Children’s Lawyer:

Phillip A Wilkins & Associates

ORDERS

CAC 1724 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS GIBSON

Applicant

AND:

MR CORDINGLEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	DEPUTY CHIEF JUDGE MCCLELLAND
DATE OF ORDER:	21 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The respondent father’s application for an adjournment is dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

MCCLELLAND DCJ:

1. The respondent father, Mr Cordingley (“the father”), has applied for an adjournment. The purpose of the adjournment application is for counsel for the father to obtain access to a complaint the father made regarding the manner in which I conducted myself at a directions hearing on 2 October 2024.

2. Counsel indicated that she would need to review the nature of the complaint and any response that may have come from the Court. Having invited counsel for the father to indicate whether she wished to make a recusal application on behalf of her client today, counsel stated she was not in a position for that to occur in circumstances where she had not had the opportunity to review the material.

3. Counsel for the father frankly admitted that she does not know whether the nature of the complaint would be of such substance that it would justify an application for recusal, but at its highest, as I sense the argument, it remained a possibility.

4. As against that reason, I need to consider the relevant principles. Those principles are set out in a number of cases including Aon Risk Services Australia Ltd v Australian National University,[1] which indicates that the Court will consider not only the potential prejudice to the other parties – in this case, the mother and the Independent Children’s Lawyer (“the ICL”) who oppose the adjournment application – but also as pertinently put by the ICL, in parenting proceedings, the Court must also consider the best interests of the child (s 95(1)(b) of the Family Law Act 1975 (Cth) (“the Act”)), who, in this case, has expressed a desire to spend time with his father.

   [1] (2009) 239 CLR 175 (“Aon Risk”).

5. In Aon Risk, the High Court of Australia also highlight that Courts are publicly funded and resources must be used efficiently.[2] There is also a need to maintain public confidence in the judicial system that it can get on with and dispense with justice expeditiously.[3]

   [2] Aon Risk at [5].

   [3] Aon Risk at [5].

6. The case of Zubair v Minister for Immigration and Border Protection,[4] sets out that the considerations in granting an adjournment include but are not limited to:

   (a)The justice between the parties;

   (b)Relevant case management principles as set out in the overarching purpose that is now contained in s 95 of the Act and r 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); and

   (c)The Court’s desire to avoid undue delay and wastage of public resources.

   [4] [2017] FCCA 2905 at [12].

7. Significantly, it is important to appreciate that there is no entitlement to an adjournment: Dahdah v Platinum Distributors Australia Pty Ltd.[5] The Court must consider not only the impact on the parties, but also the case management principles and the overarching purpose to which I have earlier referred.

   [5] [2023] FCAFC 65 at [166], referring to the Full Court in Alhalek v Quintiliani [2021] FCAFC 139 at [26].

8. Furthermore, as affirmed in Gabrielle v Abood (No 2),[6] litigants are entitled to expect that their matter will be heard on the scheduled date of the hearing and there will be an inefficient waste of Court resources if adjournments are granted without cogent reasons.

   [6] [2023] NSWCA 28 at [6] (Bell CJ, Kirk JA agreeing at [8], Adamson JA agreeing at [9]).

9. In my view, with the greatest respect to counsel for the father, the purpose of the adjournment application is not based on a cogent reason. Therefore, and in light of the above principles, I dismiss the father’s application for an adjournment.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Judge McClelland.

Associate:

Dated:       18 March 2025