Aon Risk Services Australia Limited v Australian National University

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

1. Final orders providing for care arrangements in respect of twelve-year-old X were made on 30 October 2025. They were made following a hearing in which Ms Dougherty (the mother and respondent to this appeal) and the Independent Children's Lawyer ("the ICL") participated. The father, Mr Cobb ("the appellant") applied for an adjournment of the hearing in circumstances where he had failed to file any evidence. That application was dismissed. The father declined to participate in the hearing. The primary judge proceeded to make final orders. The father appeals from those orders. These reasons explain why that appeal is dismissed.
2. The primary judge set out the following factual matters:
   1. [X] attends [B] Primary School. He has been diagnosed with autism spectrum disorder ("ASD") and a mild intellectual impairment. He receives NDIS support, including a speech therapist and an occupational therapist. He was also born with [medical complications] for which he has undergone numerous surgeries. The possibility of further surgery and numerous other aspects of [X]'s diagnosis and medical needs are the subject of dispute between the parents.
   2. Despite his difficulties, the parents agree that [X] is doing well at school, where he has plenty of friends. He is clearly a very kind, caring, and funny boy.
   3. As the father filed no material for the final hearing, the history which follows is primarily derived from the mother's filed material.
   4. The parties' relationship began in about 2009. The mother alleged that the father perpetrated family violence during the relationship, and those allegations are considered elsewhere in these reasons.
   5. [X] was born [...] prematurely [in early] 2013. He required several weeks of [...] care after birth.
   6. The parents' relationship ended [in mid] 2013 when [X] was just a few months old. The mother deposed that she and [X] lived with her parents before moving into their own rental accommodation in May 2015. The mother deposed further that after separation the father simply turned up at the maternal grandparents' home whenever he wanted to see [X], which she said was stressful for her.
   7. On 24 November 2014, the parents entered into final consent orders in relation to both parenting and property. The parenting orders provided for them to have equal shared parental responsibility for [X], for [X] to live with the mother, and for him to spend time with the father on two nights each week.
   8. The parties told [...], the family report writer, that the matter returned to Court at some point and the final orders were varied.
   9. In February 2023, the father applied to this Court for orders for [X] to spend equal time with each parent and various procedural hearings followed. There does not appear to have been a formal determination in relation to what was then the rule in Rice & Asplund, and what is now s.65DAAA of the Family Law Act 1975 (Cth) ("the Act"), but for the avoidance of doubt, both parents appear to have agreed and I am satisfied that the circumstances required the Court to review the final parenting orders and that it was in [X]'s best interests for those parenting orders to be reconsidered.
   10. At an interim defended hearing on 7 February 2024, interim orders were made by consent for [X] to live with each parent on a week about basis and for time on special days. A compliance and readiness hearing took place on 10 April 2025, when the matter was listed for final hearing. Orders pursuant to s.102NA of the Act were made then in relation to both parents, which barred each of them from personally cross-examining the other parent.
3. At the hearing, in the father's absence, the primary judge ordered (as sought by the mother and the ICL) that the child live with the mother and spend time with the father on alternate weekends and during holidays. The orders provided the mother with sole decision-making responsibility.
4. The final orders were made in reliance upon the information sharing documents, expert evidence and the mother's uncontested evidence.
5. The appellant has made no application pursuant to r 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"). In that regard, the appellant has failed to avail himself of all rights available to him prior to filing his Notice of Appeal (Cooke and Morton [2018] FamCAFC 9; (2018) FLC 93-820). While counsel for the appellant alluded to this failure in his oral submissions, he did not squarely address the appellant's failure to exhaust first instance remedies.

1. The grounds of appeal commence with Ground 2.
2. The appellant's Summary of Argument does not comply with r 13.23(2)(a) of the Rules but it would appear that it seeks to advance submissions in support of Grounds 2 to 5.

Ground 2: The learned trial judge denied procedural fairness by refusing an adjournment and proceeding to final determination without hearing from the appellant and noting, in any event, the appellant was unable to cross-examine the respondent due to the operation of s 102NA of the Family Law Act 1975 (Cth).

1. It is appropriate to deal with this ground first since it raises an asserted denial of procedural fairness (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at 581, 611-612, 634; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]-[10]).
2. While a failure to afford procedural fairness may amount to an error of law; procedural fairness requires only that each party be given an adequate opportunity to be heard, and to present their case (Kioa v West (1985) 159 CLR 550 at 582; Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 174 at [94]).
3. The appellant was self-represented before the primary judge which raises the dicta which apply to cases where a party represents themselves (Johnson v Johnson [1997] FamCA 32; (1997) FLC 92-764; Re F: Litigants in person guidelines [2001] FamCA 348; (2001) FLC 93-072).
4. The appellant was represented from the time of the filing of the Initiating Application until 22 July 2025. Trial directions were made on 3 July 2025 and provided that affidavits were to be filed 28 days prior to the hearing which had been allocated on 10 April 2025. The order under s 102NA of the Family Law Act 1975 (Cth) was made on 10 April 2025. The appellant first contacted the Legal Aid authority on 1 October 2025. The appellant did not address this delay. The appellant did not address his failure to engage private representation following the receipt by him of a costs estimate on 6 October 2025. The appellant indicated that he did not read the Court's orders or his emails.
5. The primary judge said in the reasons (at [19]):

At the start of the hearing on 29 October 2025, the father applied for an adjournment. That application was opposed by the mother. The matter was stood down for the entire morning for the father to obtain advice from a duty lawyer. I then heard submissions from all parties. I dismissed the application for adjournment and gave detailed ex tempore reasons.

(Emphasis in original)

1. The primary judge explained to the appellant the considerations in play in respect of the adjournment; namely that her Honour needed to pay primary regard to X's best interests but would also consider the interests of both parents, the interests of other court users and the need to consider the resources of the Court.
2. There are a number of relevant factors which persuaded the primary judge to proceed with the hearing, but the primary focus was that adjournment would not be in the interests of X. Secondary factors included that the appellant had had the benefit of lawyers, that he had delayed seeking representation, that the primary judge would not be able to accommodate the adjourned trial for some time, that the appellant would be permitted to rely on previously filed affidavits and to cross-examine all witnesses (save the respondent).
3. Having been unsuccessful in obtaining an adjournment the appellant declined to further participate in the hearing. The primary judge had afforded him the opportunity to rely on earlier evidence, had provided him with procedural information, had alerted him to the relevant statutory provisions, and directed him to both the duty lawyer and a family support worker. The primary judge adjourned to commence the hearing the following day. When the appellant was not present the primary judge ensured that the appellant was contacted and ultimately declined to proceed in his absence. Only when the appellant elected (in open court) to absent himself from the hearing did the primary judge proceed in his absence. The primary judge took all necessary steps to facilitate the appellant's participation. He cannot, in those circumstances, contend that he was denied procedural fairness. He was provided with the opportunity to participate in the hearing which he declined.
4. The appellant relied upon decisions of this Court in Morgan & Valverde [2022] FedCFamC1A 133; (2022) FLC 94-100 ("Morgan & Valverde") and Saso & Saso [2023] FedCFamC1A 65; (2023) 66 Fam LR 571 ("Saso"). Those decisions applied the uncontroversial principles which relate to claims of failure to afford procedural fairness. Neither of the cases were analogous to this matter since in Morgan & Valverde the primary judge erroneously prevented the appellant from cross-examining (which was not the position in this case). In Saso, the primary judge proceeded to determine the matter on an undefended basis notwithstanding the appellant in that case was present and in a position to participate in a hearing. The appellant in this case declined to participate notwithstanding the efforts of the primary judge to facilitate his participation.
5. Finally, the appellant relied upon a decision of this Court in Cuyper & Cuyper [2025] FedCFamC1A 176. Counsel submitted that the appellant had not been given notice of the primary judge's "preliminary view" - which came to represent the orders which the Court ultimately made.
6. On the second day the appellant indicated to the primary judge that he proposed to leave the Court to file an appeal against the refusal to grant an adjournment. The primary judge asked that the appellant give consideration to attending to that task during a break but ultimately informed the appellant that it was his decision about whether to participate in the trial or not. The appellant said he would leave: "[a]nd if I may, I might return but not to participate".
7. It is not apparent on the face of the transcript, but I accept that the appellant may well have been absent when the primary judge addressed the remaining parties:

HER HONOUR: All right. I've got to say, having read all of the material, and in spite of what has unfolded over the last day and a half, I have some reservations about that approach. I don't think you need to make a formal application to proceed on your client's evidence, only because there is no other material before me, because the father hasn't filed any trial material or any extant application. So what I propose to do is to make an order today, for the avoidance of doubt, the mother have permission to proceed on her evidence alone, noting that the father has filed no trial material in compliance with the orders of this court. And I want that to be clear, that that is the basis on which we're proceeding. Are you content for that order to be made, and do you agree it's appropriate, [counsel for the respondent]?

1. The primary judge expanded on that observation by saying:

Now what I'm just going to float as a possibility is alternate weekends, Friday to Monday, school changeovers, and some very carefully managed school holiday changeovers. We might need to think about using a contact service for those school holiday changeovers...

1. This would appear to be the "preliminary view" which the appellant submits created a procedural unfairness to him. The first matter which ought be observed is that the primary judge's preliminary view was more favourable to the appellant than the respondent's proposed orders and more favourable than the Family Report writer's recommendation.
2. The transcript demonstrates that the primary judge's preliminary observations came to be adopted in large part by the respondent and the ICL and embodied in a Minute of Order which was provided to the appellant by email.
3. It was not improper for the primary judge to express a view based on the untested evidence. Had the appellant not elected to leave the courtroom he would have heard that view expressed. The transcript indicates that he was aware of the orders which were being sought. There was no procedural unfairness to him.

Ground 3: The learned trial judge erred by determining significantly contested parenting issues based principally on the respondent's evidence and the Family Report, which led to miscarriage of justice.

1. The primary judge determined the issue on the evidence before the Court and consistently with the evidence before the Court. No error is demonstrated.

Ground 4: The learned trial judge failed to give proper consideration and weight to the child's expressed views and contentment with the existing equal shared care arrangement, and the stability of such status quo, given the child's developmental circumstances.

1. The appeal ground acknowledged that the primary judge considered X's views. His views were to be found in the Family Report which the primary judge considered in the following passages of the reasons:
   1. [The Family Report writer] noted that [X] presented as reserved and reluctant to answer questions, which she considered likely to be due to being in an unfamiliar environment and not wanting to express negative views about either parent. I accept that opinion.
   2. I incorporate into these reasons the relevant portions of [the Family Report writer's] report in that regard:

[X] confirmed that he lives with his mother for one week and then his father for one week. He said he likes the arrangement because "it is fair". He said he was unsure whether he would change the arrangement if he could.

[X] identified three things about his father to be that they go on a boat together, they sometimes go to the beach and play with the dog. When describing his mother, [X] said his mother sometimes works, she gives him snacks after school, and she takes him to school.

[X] confirmed that he has never felt scared or uncomfortable with his mother or his father, and said he has never seen them fight with each other. He also said he did not know if he wanted to spend more or less time with his father and was unable to say if he would change anything about the current arrangement.

The Report Writer asked [X] several more questions about his family and his living arrangements and [X] responded to each question stating he "did not know" so the interview ended.

...

During his interview, [X] gave some indication that he enjoyed spending time with both of his parents and felt that the current arrangement was "fair" and seemed to indicate that he did not want it to change without providing any further information as to how he felt about the current situation. Children of [X]'s age are at risk of emotional splitting, and they often feel stuck due to loyalty conflict and may become emotionally constricted, worrying about both of their parents and given [X]'s hesitancy to discuss his living situation in more detail, which does not appear to be the case here, which may be further exacerbated by [X]'s diagnoses of ASD and a mild intellectual impairment.

1. These paragraphs are an accurate recording of the uncontested expert evidence. The weight challenge must fail. The primary judge explained the basis upon which she was inclined to give limited weight to X's expressed views clearly and cogently (at [68]). The weight to be attached to evidence at trial is a matter for the primary judge unless the appellant is able to establish that the primary judge was plainly wrong (CDJ v VAJ (1998) 197 CLR 172 at 230-231 (per Kirby J)).
2. The passage from the decision of Stephen J in Gronow v Gronow (1979) 144 CLR 513 at 519-520 has application here:

The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight...

1. The appellant has not demonstrated error under Ground 4.

Ground 5: The learned trial judge erred in failing to: (a) adequately engage with and reconcile the expert evidence and recommendations and/or (b) provide proper and adequate reasons for departing from recommendations about future supervision.

1. This ground asserts error on the part of the primary judge in failing to make orders less favourable to the appellant than those which she ultimately made. It is not open to the appellant to seriously contend that the primary judge's failure to provide adequate reasons for departing from the expert recommendation that his time with X be supervised in circumstances where he sought unsupervised care on a week about basis. On inquiry at the hearing of the appeal, counsel for the appellant acknowledged that the ground could not be argued.

1. The respondent has incurred no legal fees in respect of the appeal. It follows that there will be no orders as to costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie.