Aon Risk Services Australia Limited v Australia National University

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 Carlson & Fritz has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The trial of this proceeding commenced on 2 February 2026 and as soon as appearances were announced, counsel for the father indicated that the trial could not proceed and should be adjourned. She contended that counsel for the mother had previously represented the ICL with the consequence that counsel now appearing for the mother was conflicted and had to cease appearing for the mother. Counsel for the father eventually submitted that it was the father's application that the trial be adjourned.
2. The mother's counsel opposed the application by the father to adjourn the trial, contending that the trial should proceed. He submitted that he had no recollection whatever of having represented the ICL previously, although he did concede that the mother now, and the ICL then, were opposed to the father's application for parenting orders. Mr Howe of counsel for the mother on this trial submitted that no conflict existed.
3. Counsel now appearing for the ICL submitted that this situation might raise a perception in the eyes of ordinary right thinking people that the mother and the ICL were somehow acting in concert in their approach in this litigation and that a fair-minded observer would regard it as peculiar that counsel can appear for one party (the ICL) on the return of the case for trial on one occasion then appear for another party (the mother) on the subsequent return of the adjourned commencement of the trial. Ms Elleray for the ICL on this occasion submitted that the interests of the administration of justice were not well served by my permitting such a course of conduct.
4. No application in a proceeding was filed raising the father's request for the trial to be adjourned. No affidavit was filed in support of the father's application for the trial to be adjourned.
5. The whole issue of the alleged conflict in Mr Howe's position arose because an exchange of emails between the parties last week raised, by Mr Howe, his contention that he had no recollection of representing the ICL on a previous occasion when this case had been called on for trial before me late last year. Mr Howe said he did not keep any records of his previous appearance for the ICL. However, Mr Howe did tell me yesterday that he recalled that on the previous occasion when he was briefed for the ICL, he formed the view that the best interests of the child in this case were promoted by opposing the father's parenting applications.
6. No affidavit was filed or relied on in support of the father's adjournment application, as has already been mentioned. There being no interlocutory application of any description by the mother or the ICL concerning Mr Howe's circumstances, I asked Ms Liano what application the father brought. She told me several times in unmistakable terms that the father had instructed Ms Liano that in the father's view Mr Howe was in a position of conflict, Mr Howe (according to the father) having represented the ICL previously and now appearing for the mother against the father. Ms Liano said she applied on behalf of the father for an order adjourning the trial in order to allow the mother to obtain replacement counsel and thereafter for the case to proceed in an orderly manner at trial. During debate between Ms Liano and me, on several occasions she said the adjournment application had been made by Mr Howe's client. I said Mr Howe made no such application. Ms Liano submitted that Mr Howe's emails last week alerting Ms Liano and Ms Elleray to his position of having previously acted for the ICL were to be taken as a concession that Mr Howe was professionally conflicted from now appearing for the mother and that, in reality, the adjournment application was made by the mother.
7. I took issue with Ms Liano's loose and erroneous construction of events as just described, particularly having regard to the fact that Ms Liano said in unambiguous terms on several occasions that she (Ms Liano) applied on behalf of her client (the father) to adjourn the trial. In my view, it was entirely wrong for Ms Liano to repeatedly submit that the mother made the adjournment application. The father did, not the mother.
8. Several times during debate yesterday I was forced to remind Ms Liano that her client applied to adjourn the trial and that the transcript had recorded each such iteration and reiteration of her position that her client applied for the adjournment.
9. At about noon yesterday I asked Ms Liano for detailed submissions about the factual grounds of, and the legal position in support of her client's application to adjourn. So far as the factual matters were concerned, Ms Liano said she did not have documents in her possession that recorded the information about which Mr Howe was briefed when representing the ICL. She said she was not aware what information Mr Howe may have been given so as to properly represent the ICL. She said she was not aware whether Mr Howe was provided with confidential information and if so, how and in what circumstances the disclosure while acting for the mother now of any such information may compromise any professional duty to or privilege owed in favour of the ICL.
10. So far as the legal basis of her application was concerned, Ms Liano said her client (the father) was concerned that Mr Howe should not be permitted to represent one party (the ICL) on one occasion and then to represent another party (the mother) with impunity (my word). I asked Ms Liano for her submissions, in pinpoint accuracy, coupled with all applicable authorities on point. She said she could do neither. She asked for time. I adjourned early and gave her until 2.00pm to better formulate her position and submissions and to find and rely on one or more authorities to support her adjournment application.
11. At 2.00pm Ms Liano's submissions changed. I address that below. So far as authorities were concerned, Ms Liano (who had earlier made submissions about the conflict of interest, relied upon Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, curiously, as that case concerned apprehended bias, and no one submitted that I had displayed any signs of apprehended bias. Ms Liano then argued that the facts of this case raised matters concerning procedural fairness, although she did not develop the argument nor did she cite any authority to link the facts of this case to some alleged denial of procedural fairness. There were none. That argument was devoid of merit.
12. I asked Ms Liano how this case was to proceed if I were minded to accede to her request by adjourning the trial. She said new counsel could be appointed in place of Mr Howe and, once that new counsel got up to speed, the case could resume. I asked Ms Liano to formulate a draft of the order she sought.
13. She then attempted to alter the nature of the application for an adjournment by stating that her client wanted an order inviting Mr Howe to consult the Victorian Bar Ethics Committee for a ruling about whether he was permitted to retain the brief for the mother in circumstances narrated above. Mr Howe said he had no instructions to apply to the Ethics Committee to seek any ruling of the sort. Ms Liano mentioned that her client sought an order in the nature of an injunction preventing Mr Howe from appearing for the mother. Mr Howe said the mother would not voluntarily release Mr Howe from his retainer on her behalf. I asked Ms Liano pursuant to what power the injunction she sought was made - under the Federal Circuit and Family Court of Australia Act, in equity, under the Family Law Rules, or pursuant to some power conferred on the court to control and supervise its officers. Ms Liano said she was unable to answer that question. Mr Howe said he had no instructions to cease representing the mother. He also said he had no intention of approaching the Ethics Committee to seek some form of ruling on whether he was obliged to cease representing the mother.
14. Ms Elleray for the ICL submitted that as a matter of the administration of justice, it did not reflect well upon Mr Howe for him to represent one party (the ICL) on one occasion and then the mother on another. I asked all counsel to inform me in precise terms what confidential information imparted to the ICL was at risk of disclosure if Mr Howe continued to represent the mother. No counsel could respond with particularity of the precise conflict this situation allegedly enlivened.
15. In circumstances where Ms Elleray for the ICL was proposing to resist the father's parenting orders on this occasion and in circumstances where Mr Howe had been prepared to do the same thing when acting for the ICL previously and presently intends to do that now while representing the mother, I was unable to see what conflict existed with Mr Howe's approach to this case while presently representing the mother. Whether representing the ICL or the mother, Mr Howe will be opposing the parenting orders sought by the father.
16. Mr Howe submitted that this case was not one akin to a solicitor, having obtained confidential information while acting for one client, later represents a party against the solicitor's former client and uses confidential information obtained during the course of the retainer by the former client to do so. An injunction will most likely be ordered to restrain such conduct by the solicitor of the former client: see Hayne J in Farrow Mortgage Services Pty Ltd (in liq) v Mendall Properties Pty Ltd [1995] VicRp 1; [1995] 1 VR 1, Talbot v General Television Corporation Pty Ltd [1980] VicRp 26; [1980] VR 224, and Lionheart Management Group Pty Ltd & Stanley [1999] VSC 502.
17. But those cases, unlike this, involved a precise articulation of the confidential information alleged. They also involved, unlike this, a direct risk of divulging the confidential information. Here, neither the confidential information was identified nor was the risk of divulging it identified.
18. Mr Howe also submitted that the ICL was not (or may not be) strictly a "party" to the proceeding. Whether that was correct or not was not developed.
19. This case has had a lamentable history of false starts in getting to trial. It proceeded in a haphazard manner in Division 2 until the case was uplifted to Division 1. Last year the case failed to commence when listed before me. No good reason was advanced yesterday to prevent the case commencing at trial. The time has come for the case to start.
20. The child currently lives with the mother. There is no risk to the child pending any trial of this proceeding. Whether parenting orders are made in accordance with the father's wishes must await a trial. Issues such as risk to and safety for the child will inform the best interests of the child.
21. No counsel took me to statements of principle in respect of adjournment applications as espoused by the High Court in Aon Risk Services Australia Limited v Australia National University (2009) 239 CLR 175. It seems to me that the father failed in his endeavour to adjourn the commencement of the trial in this proceeding. No good reason was given for any such adjournment. Conversely, this case cries out for determination. If the father asserts that he is disadvantaged at any stage during the trial, he can apply for appropriate relief. The case must now proceed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson.