Aon Risk Services Australia Limited v Australian National University

Chong & Kerimowa [2025] FedCFamC1A 158

Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57

Elgin & Elgin (2015) 54 Fam LR 31; [2015] FamCAFC 155

Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446

Queensland & JL Holdings (1997) 189 CLR 146; [1997] HCA 1

Ralton & Ralton [2017] FamCAFC 182

Re F (Litigants in Person Guidelines) (2001) FLC 93-072; [2001] FamCA 348

Re K [1994] FLC 92-461; [1994] FamCA 21

Sali v SPC Ltd (1993) 116 ALR 625; [1993] HCA 47

Trewitt & Brock [2021] FedCFamC1A 9

Western Australia v Ben Ward & Ors [1997] FCA 585; (1997) 76 FCR 492

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

1. The mother's Application in a Proceeding filed 28 January 2026 is dismissed.

1. The trial will commence at 10.00 am on Tuesday 10 February 2026 in person in Cairns.
2. Chambers will provide the mother with a copy of the decision in Re F (Litigants in Person Guidelines) [2001] FamCA 348; (2001) FLC 93-072 and s 60CC of the Family Law Act 1975 (Cth) which guide the Court's determination of the child's best interests.

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

1. In an ideal world, all parties wishing for legal representation would either be able to afford the services of a lawyer by their own means, or, where they cannot afford to do so, have one provided for them by the taxpayers of Australia.
2. But we do not live in or litigate in such an ideal world. The "missing middle" is a phenomenon of long standing - litigants "too poor" to fund private lawyers, and "too rich" to qualify for legal aid.
3. That is a reality which Courts, judges and legal representatives have long had to deal with and accommodate.
4. The missing middle observation is in no way a criticism of Legal Aid - they work with finite resources too.
5. As was made clear in Dietrich v The Queen [1992] HCA 57; 177 CLR 292 ("Dietrich") at 297-298 and 311, litigants do not have a right to legal representation - rather, they have a right to a fair trial, the occurrence of which is a solemn obligation imposed upon all judicial officers.
6. In addition to ensuring a fair trial, s 41 of the Evidence Act 1995 (Cth) and s 101 of the Family Law Act 1975 (Cth) ("the Act") mandate judicial officers shall forbid a witness from being asked improper questions, including but not limited to those that are offensive, scandalous, insulting, abusive, humiliating, oppressive, repetitive or hectoring, unless the court is satisfied that it is essential in the interests of justice for the examination to continue or the questions to be answered.
7. I hasten to observe that in no way do I suggest that Mr Fellows or Mr Baston of Counsel would ask such questions. I set out that, though, as one of the safeguards the mother will have if I do not adjourn the trial and she is acting for herself.
8. On top of those requirements, due to the reality and frequency of litigants in person, in 2001, the Full Court of the Family Court of Australia developed guidelines for judicial officers dealing with litigants in person in Re F (Litigants in Person Guidelines) [2001] FamCA 348; (2001) FLC 93-072 ("Re F").
9. In this matter, the mother applies for an adjournment of the trial due to start in 12 days' time, being Tuesday, 10 February 2026 in Cairns.
10. The gist of her application is that her financial circumstances have apparently changed and she no longer has private lawyers; the mother deposes that she parted company with her former lawyers in late November 2025. She filed a Notice of Address for Service on 15 December 2025 and applied for a grant of legal aid on 17 December 2025 but says the application has not yet been determined.
11. The trial has been set down since 4 July 2025.
12. It is parenting trial concerning the child X who is five this year. She is seeing her father on a supervised basis and has been doing so since at least an Order of November 2024. The parties, and particularly the mother, make serious allegations which can only be resolved by the trial process.
13. The mother seeks a "short adjournment" of the trial so her Legal Aid application can be determined - but there are no guarantees Legal Aid will grant her application. A short adjournment is also not a luxury this Court can offer.
14. I observe that the mother has filed an Application in a Proceeding, and a short but very much to the point affidavit. That shows some acumen and skill on her part, as opposed to "applications" to adjourn that simply - and inappropriately - come by way of email.
15. She has also filed her trial affidavit after requesting an extension of time to do so. That extension was granted. Save for her desire for legal representatives, the trial is ready to proceed.
16. These are my ex tempore reasons. I will correct the transcript for grammatical errors and to make these oral reasons more amenable to reading.

1. The mother's material was:
   • Application in a Proceeding filed 28 January 2026; and
   • Affidavit of the mother filed 28 February 2026.
2. Given the matter was brought on at short notice, and given the nature of the application I did not require the father or Independent Children's Lawyer ("ICL") to file material in response.

1. The father was born in 1992 and the mother in 1992.
2. The mother says they commenced a relationship in 2019. The father says 2020. Whether anything turns on that will no doubt be revealed at trial.
3. The parties were married in 2021 and the child, X, was born later in 2021. They separated in late June 2023.
4. After that, the child was spending a 50-50 shared care arrangement between the parents. That continued on for some time, until early October 2024 when the mother alleged the child told her something along the lines of "daddy hurts me". A few days later, 11 October 2024, the father says the mother failed to attend changeovers in accordance with their usual parenting arrangements.
5. On 16 October 2024, the mother filed her Initiating Application. I note that she was self-acting when she did that.
6. On 18 November 2024, Orders were made by consent for the child to have supervised time with the father for, as I understand it, two hours each alternate weekend.
7. The matter first came before me on 4 July 2025 for a Case Management Hearing. The mother was self-representing then. On that July date, I set the matter down for trial for four days commencing on 10 February 2026 in Cairns. I made trial directions as well that if the mother remained self-represented [by 30 November 2025], then the parties where to advise chambers as expeditiously as possible.
8. On 5 August 2025, B Lawyers filed a Notice of Address for Service.
9. In late November 2025, the mother parted ways with those legal representatives. She filed her own Notice of Address for Service on 15 December 2025.
10. The Notations to the listing Order of 29 January 2026, for today, being 30 January 2026 reveals the parties were required to notify the Court by 30 November 2025 if the mother was self‑acting so a discretionary s 102NA order could be considered:
    1. Consequently, on 17 December 2025, Chambers received a joint letter from the parties which raised a number of matters, but with respect to s 102NA said:

The Mother alleges domestic violence perpetrated by the Father, and she is now self-represented in these proceedings. The parties therefore respectfully request the Court consider making a s 102NA order to avoid any delay to the final hearing.

1. On 18 December 2025, Chambers responded to the parties and addressed s 102NA as follows:

Dear Practitioners and Party,

....

With respect to s 102NA and in an effort to save the parties the time and money of a further Court event, Her Honour has directed us to write back to you to advise that Legal Aid Queensland have indicated that there is currently no remaining funding available under the scheme for any new s 102NA orders.

As such, may the parties please confirm whether this matter falls into any of the mandatory criteria under s 102NA(1)(c)(i)-(iii) or whether such an order would be on a discretionary basis under s 102NA(1)(c)(iv)? At this stage, it is chambers understanding that there is no current family violence order in place.

In the event that it would be a discretionary order, the parties may wish to consider whether this would be appropriate in circumstances where it will not be funded.

Alternatively, if a discretionary s 102NA order is not made, it is noted that the mother is at liberty to request a Safety Plan from the Registry and Her Honour will ensure, as required by s 102NB, that there are appropriate protections in place for the party who is the alleged victim of family violence.

If contrary to the above, the parties do wish for the matter to be mentioned to consider the making of a discretionary s 102NA order, Her Honour will find a date to do so. Please advise chambers accordingly if that is so.

We look forward to hearing from you.

1. On 19 December 2025, Chambers received the following email from the respondent father's solicitor, copying all parties:

Dear Associate,

We refer to the below email from Chambers on 18 December 2025.

There is no current family violence order in place.

It is the position of the Father and the Independent Children's Lawyer that the matter does not fall into the mandatory criteria under s 102NA(1)(c)(i)-(iii) and do not seek an order on a discretionary basis.

The Mother has advised that she reserves her position pending receipt of legal advice.

This email is sent with the consent of all parties.

1. Chambers has not received any subsequent communication from the applicant mother seeking that s 102NA be considered, nor any further response to Chamber's 18 December 2025 email or the email communication extracted at Notation H.

1. The power to adjourn is wholly discretionary, but it is a discretion to be exercised judicially. In that regard, I refer to Queensland & JL Holdings [1997] HCA 1; (1997) 189 CLR 146 and Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 ("Aon Risk"). As such, I should take into account:
   • the reasons for the adjournment;
   • any period of delay in making the application;
   • any prejudice or disadvantage to the other party which cannot be compensated by way of costs, including, if necessary, security for costs; and
   • the fundamental consideration is to do justice between the parties.
2. Similarly, the observations of the Full Court of the Family Court in Elgin & Elgin [2015] FamCAFC 155; (2015) 54 Fam LR 31 ("Elgin"), particularly [90] to [95], set out authority in support of the general nature of the discretion. The Elgin Court observed that since Aon Risk:
   • case management principles, including the need not to deprive other litigants of Court resources, are now accepted as being potentially relevant considerations.
3. Consistent with the requirement of Re F, I went through those considerations with the mother, first listing them for her so she could understand what I had to turn my mind to and then going through them one by one for her to make submissions.
4. On the last [dot] point [above] about case management, the majority in Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625 ("Sali") said at 629:

In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties. As Deane J pointed out in Squire v. Rogers ((4) [1979] FCA 48; (1979) 27 ALR 330, at p.337.) this "may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing". What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.

1. Toohey and Gaudron JJ also said in Sali at 636:

...The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard. Because these considerations are singularly within the knowledge of the court to which an application for an adjournment is made, there is an added reason why this Court should not interfere with a decision made on such an application.

Having regard to these matters, it is clear that the Full Court's decision to refuse an adjournment for two weeks was correct.

1. As these are parenting proceedings, I also take into account the decision in Re K [1994] FamCA 21; (1994) FLC 92-461 ("Re K") where it was said by the Full Court at 80,765 that any prejudice to a party is secondary to the best interests of the child.
2. All of these principles find their way into ss 67 and 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), being the overarching principles for matters to be dealt with efficiently, cost effectively and as quickly as possible.
3. The cases I have referred to highlight I must do justice to both parties, but I also must consider X's best interests. True, an application to adjourn is not a parenting order within the meaning of s 64B of the Act (Trewitt & Brock [2021] FedCFamC1A 9). But the flip side of that is what I am being asked to adjourn is the trial where the parties' competing parenting orders fairly and squarely fall within parenting orders where the child's best interests are paramount (s 60CA of the Act).

1. It is perfectly understandable the mother would like legal representatives. But the outcome of her application to Legal Aid Queensland is not known. They may reject her application; they may not. If they do reject it, the adjournment will have been for nought.
2. I have already referred to Dietrich with respect to there being no right to legal representation. Now I add reference to Ralton & Ralton [2017] FamCAFC 182 at [78]-[79]:
   1. ... The mother had no right to legal representation (Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 297 - 298 and 311; New South Wales v Canellis [1994] HCA 51; (1994) 181 CLR 309 at 328). The fact that the mother did not have legal representation did not, of itself, require that the primary judge accede to an adjournment.
   2. The primary judge was, however, obliged to ensure that the mother received a fair hearing.
3. Similarly, in Chong & Kerimowa [2025] FedCFamC1A 158 (per Austin, Baumann & Williams JJ) this was observed at [63]:
   1. The mother's lack of legal representation for part of the trial was a misfortune (Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 at 481), but the lack of representation does not necessarily render a civil trial unfair (Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292). The criteria for determining what amounts to injustice in a civil case necessarily differs from those appropriate to answering the same question in a criminal context and, importantly, an imperfect trial is not the same thing as an unfair trial (Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 26 and 49).
4. The mother's application is also distinguishable from the cases where an adjournment is sought for a party to keep a Counsel of their choice. It has long been accepted that there is a public interest in a litigant not being deprived of their Counsel of choice, "without good cause. The right to the choice of one's counsel is an important value. But it is not an absolute ..." (Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446 at 450). As was also said Western Australia v Ben Ward & Ors [1997] FCA 585; (1997) 76 FCR 492 at 498 "the general right of a party to be represented by the counsel or solicitor of its choice must give way to the overriding principle of protecting the integrity of the judicial process."
5. Here, the mother does not have Counsel, let alone Counsel of choice. She has an application before Legal Aid which may or may not be granted.
6. The mother deposed:
   1. Due to my current self representation status, I have been unable to adequately prepare for the trial in accordance with the Courts directions.
   2. Proceedings [sic] to trial in these circumstances would result in procedural unfairness, as I am not presently in a position to properly present my case or respond to the other parties evidence.
7. Respectfully, I do not accept that. The trial was set down in July 2025. The mother has been self-acting at times and has again since at least mid-November 2025. The father's case is not new to her. He seems to be relying on affidavits from late 2024, and per the extended filing time frames, January 2026. If any are filed out of time, the father will need leave to rely upon them, and the mother is perfectly entitled to oppose their reception into evidence. Whatever the mother's attitude, if any are out of time, it will be up to the Court to grant that leave, or not. I also observe the expert reports are dated 2025.

1. The mother and her solicitors parted company in late November 2025. The mother filed a Notice of Address for service on 15 December 2025. She promptly applied for legal aid on 17 December 2025.
2. It is not clear why she took until 27 January 2026 to file the application to adjourn, but I accept the summer holiday period intervened, the timing for Legal Aid Queensland to assess her application is beyond her control and the mother, as she said herself, was "a little naïve" in her expectations of the Legal Aid turnaround time.
3. At least, though, she did not leave the application to adjourn to the morning of trial.

any prejudice or disadvantage to the other party which cannot be compensated by way of costs, including, if necessary, security for costs

1. Costs may be perfectly suitable in, say, a commercial civil dispute, but this is not. The mother has no funds for private lawyers, thus her application to Legal Aid Queensland. She is not in a position to offer any costs if the adjournment is granted and the father and ICL have costs thrown away.
2. Further, this is a parenting matter where it is hard to see how delay in resolving the justiciable controversy - a controversy that traverses the best interests of the child - could actually be accommodated by costs orders.
3. I accept Mr Fellows' submission that his client has incurred costs and he is preparing the matter, as would be expected for a four day trial where his client faces serious allegations. I accept his submission that technically the work is not thrown away, but the practical reality, which I also accept, is if I adjourn the trial off to August, all the preparation he has done to date, will have to be re-done. Memories can only go so far.

the fundamental consideration is to do justice between the parties

1. Critically, the mother makes serious allegations. In turn, the child has been spending supervised time with the father since at least the Order of November 2024. This trial is not just about the parties. As Austin J has referred to many times, these are not traditional civil proceedings between parties inter se - ultimately, what is before me for four days in a fortnight is to resolve the serious allegations made by each parent, in particular by the mother, and determine what is in the child's best interests. The resolution of the allegations can only occur at a trial.
2. I have already observed the Re K point that any prejudice to a party is secondary to the best interests of the child.
3. I have also set out the obligations imposed on the Court to provide a fair trial, to disallow improper questions and the guidance as set out by Re F. At the start of trial, I will, amongst other things, take the mother through how the trial will work.
4. Whilst the mother would no doubt take comfort from having legal representatives, it has long been held that legal representation is "a privilege not a right" (Calder & Andrews [2016] FamCA 54 at [3]). Many people find themselves as litigants in person. All courts have long accommodated this and justice is still done for all.
5. In the hearing, I foreshadowed that I am likely to require the ICL's Counsel to cross-examine the father, his witnesses and the Family Report Writer and other experts first. That is, before the mother. But, the mother must be clear that it is not for the ICL to run her case. However, the ICL's Counsel may cover some common ground and at the very least, the mother will see how cross-examination works.
6. I brought this application on at short notice, so all parties could see where they stood sooner rather than later. If I dismiss the application, the mother will have this weekend, all of next week, the following weekend and Monday, 9 February [2026] to prepare. That is on top of the trial being set down in July 2025 and her becoming self-represented in November 2025. I am satisfied this is ample time for her to prepare.
7. I am also aware that Cairns has some marvellous community legal services, and it will be a matter for the mother if she wishes to make or can get an appointment. But I am satisfied the mother knows the case she is running and she knows the case the father is running.

case management principles, including the need not to deprive other litigants of Court resources, are now accepted as being potentially relevant considerations

1. I cannot offer a short adjournment as sought. It is now the end of January 2026. The best I could do, if I adjourned it, would be to sometime from perhaps late August 2026. That does not serve the child's best interests. Nor does it assist the parties in achieving an efficient resolution of their dispute.
2. Perhaps most importantly, finality for the child is delayed.
3. Knowing my lists and dockets, I have no prospect of offering another family four days the week after next or, more so, whether another family would be ready to come on at short notice. If I did adjourn the matter, then those new dates in the second half of the year would deprive another family of judicial attention and resolution.
4. Such is the importance of this matter that I have not listed a backup trial for these long-standing February 2026 trial dates.

1. I am satisfied that granting an adjournment: does not resolve the justiciable controversy; and, would do an injustice to the father, the ICL and the child. I accept the mother will likely be self-acting, but Re F will apply, as will the provisions of the Evidence Act and Family Law Act about improper questions, and most importantly, the Court's duty to hold a fair trial is front and centre. I repeat what I have already said about there being no right to legal representation.
2. The idea of costs compensating the other parties is somewhat illusory: (a) in a parenting matter, and (b) where the mother's reason to adjourn is she no longer has funds for a private lawyer and is hoping for a grant of Legal Aid. But there is no guarantee she will be successful in her application, meaning an adjournment could be a waste if Legal Aid Queensland says no. I am also of the view the mother has had and still has ample time to prepare.
3. Court resources will be lost if the four days are adjourned next fortnight. That means other families will miss out on Court time in that week, and then again if the matter is re-listed at some date in the future.
4. Most importantly, X needs: finality; a resolution of the allegations made by the parties, which can only occur at trial; and, a best interests decision made about and for her.
5. For those reasons, the application to adjourn the hearing is dismissed.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch.