Aon Risk Services Australia Ltd v Australian National University

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

1. By Application in an Appeal filed 31 December 2025, the applicant who is subject to a harmful proceedings order seeks leave to appeal orders made on 3 December 2025 by a judge of the Federal Circuit and Family Court of Australia (Division 2).
2. The applicant stated that he did not want his application determined in the parties' absence in accordance with r 13.38 and Pt 5.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Notwithstanding his request, the application is determined in that fashion, as the Act permits (s 102QAF(3) and s 102QAF(4)).

1. On 10 February 2025, the applicant filed a contravention application. The application contended 18 separate counts, albeit the manner and form of drafting obscured in many instances the contended contraventions.
2. The hearing of the application took place over two days, during which the primary judge struck out five of the contraventions and made findings that the respondent had not contravened the orders in relation to two other counts. The hearing was otherwise adjourned part-heard to determine whether the respondent had a reasonable excuse in relation to the remaining counts.
3. The primary judge's reasons for judgment relevantly record as follows:
   1. The contravention application had clearly been prepared by the applicant without the benefit of legal advice or assistance. Putting to one side that the applicant's affidavit filed with the contravention application was over 120 pages, the application itself appeared to be an amalgam of allegations and submissions. However, the contravention application (which was 37 pages) did contain a 'Schedule of alleged contraventions'.
   2. An example of the problems created for the applicant by the contravention application not being prepared by a legal practitioner, is that it contained numerous errors. When cross referenced with his supporting affidavit, there were clearly typographical errors in the dates of some of the counts in the 'Schedule of alleged contraventions'.
   3. In the interests of fairness and given the respondent was aware from the affidavit of the correct dates of the allegations (as acknowledged by her Counsel) and as there was supporting evidence for those counts, they were not struck out despite those errors in the form.
   4. Even so, before the Court could put the counts to the respondent, her Counsel indicated he wished to make submissions in relation to what were said to be deficiencies in the way certain of the counts in the contravention application were pleaded.
   5. Counsel for the respondent made submissions on this issue, and Counsel for the applicant was given an opportunity to respond. Those submissions will be summarised presently.

The Respondent, without reasonable excuse, refused to use the communication platform 'OFW,' and sending me direct irrelevant for my daughter, distressing, defamatory and not welcoming threatening messages by direct email, txt, Skype, etc., and majority of the time not relevant for my daughter.

Order 17 of the Final Order dated 06/03/2019.

...

1. Counsel for the respondent submitted that count 2 should be struck out as it didn't set out with precision, when or where the breaches occurred. There were potentially multiple breaches (which were unable to be precisely identified) and nowhere was the particular order (the subsection of order 17), in order 17 of the orders dated 6 March 2019, said to have been contravened identified. In relation to the criticisms of how this count was pleaded, Counsel for the applicant conceded it had not been properly put.

35 Count 8 had alleged:

The respondent breached the Final Order by traveling outside of the Commonwealth of Australia to [Country D] with our daughter, [X].

Orders 12(a, b, c, d, e, f) of the Final Order dated 06/03/2019.

...

1. In relation to count 8, Counsel for the respondent submitted that count should also be struck out, as there were a number of subsections to order 12 of the orders dated 6 March 2019, which was said to have been contravened. It wasn't possible to know, on the face of the application or the affidavit, which of those the respondent was supposed to meet. It was also submitted that, to the extent there was evidence in support of the allegation, it was not possible to know which of that evidence related to what subsection of the relevant order. Counsel for the applicant again, conceded that this count had not been properly pleaded.

38 Count 12 had alleged:

The Respondent, without reasonable excuse, inflinged psychological child abuse and denigrating messages to the child [X] when she was sick with fever at Father's home [sic].

Order 14(a, b) of the Final Order dated 06/03/2019.

28 October 2024 - [Suburb B], Father's home

...

1. Counsel for the respondent submitted that count 12 suffered from the same vice/s as those already referred to and it was not possible on the face of either the application or the affidavit in support, to know precisely which of the orders in order 14 of the orders dated 6 March 2019 was alleged to have been contravened or how. Counsel for the applicant conceded the count had not been properly pleaded.

41 Count 13 had alleged:

The respondent breached the Final Order by travelling outside of the Commonwealth of Australia to [Country E] 4 weeks and later to [Country F] with our daughter, [X].

Orders 12(a, b, c, d, e, f) of the Final Order dated 06/03/2019

...

1. In so far as count 13 was concerned, Counsel for the respondent submitted that this count should also be struck out as it was not possible on the face of either the application or the affidavit in support to know which of subsections to order 12 of the orders dated 6 March 2019 it was said to have been contravened. Further, it wasn't possible to know on the face of the application or the affidavit which of those the respondent was supposed to meet. In short, the rolled up nature of the allegations was objectionable, and the count should on that basis be struck out. Counsel for the applicant conceded the count had not been properly pleaded.

44 Count 15 had alleged:

The Respondent, without reasonable excuse, manipulated the police, broke the father's door house, entered, assaulted, and arrested the father in front of the daughter that was crying traumatised, and the mother took directly the child [X] away, breaching the orders and time with the Applicant.

Orders 5(d) and 14(a, b) of the Final Order dated 06/03/2019.

...

1. Finally, in relation to count 15, Counsel for the respondent identified on the face of the application the same vices with this allegation as those already referred to and said it was not possible for the respondent to know, given the way the allegation was drafted or the evidence in support was put, which of the alleged order/s (in order 5 or order 14 of the orders dated 6 March 2019) the respondent was alleged to have breached and - in what particular way or act it was said they were breached. Again, Counsel for the applicant conceded the count had not been properly pleaded.

SHOULD THE IDENTIFIED COUNTS BE STRUCK OUT

1. Contravention allegations must be precisely stated. In contravention proceedings, proper particularisation is important. These are quasi criminal proceedings, and the applicant bears the burden of establishing that the order has been contravened. The consequences that can flow from a breach being proven are serious.

...

1. It has long been identified that strict compliance with pleadings needs to be adhered to particularly in matters relating to multiple allegations of alleged breaches of orders. The rule against duplicity is expressed as one of elementary fairness. There are good reasons for this rule. The respondent must be able to admit or deny each charge against her.

2. Counsel for the respondent said it was immediately apparent from an examination of the counts 8,12,13 & 15 at Annexure A, that the applicant potentially alleged two or more contraventions in the one charge, in each of those counts. On a plain reading of the application, it was simply not possible to identify which order was said to have been contravened on what date/s. It was also raised that in relation to count 2, the application did not particularise which of the sub-paragraphs of order 17 were alleged to have been contravened and it was not possible to know the exact charge, let alone when it occurred.

3. These were the vices raised in Counsel for the respondent's submissions and (having heard from Counsel for the applicant who conceded the counts were not properly pleaded) I found that to be the case and indicated when doing so, that those counts (having regard to the above principles (which were referred to during the hearing) and the submissions that were made) would be struck out providing brief oral reasons at the time.

REMAINING COUNTS IN CONTRAVENTION APPLICATION

1. Then, when in accordance with the Rules, the remaining counts in the contravention application were put to the respondent, she initially denied all of the thirteen remaining counts.

2. However, during the course of the applicant's evidence (where he adopted his contravention application and affidavit both filed 10 May 2025 and was cross examined), Counsel for the respondent indicated (on two separate occasions) his client wished to change her initial (and then subsequent) plea.

3. Ultimately, at the end of the applicant's evidence on 31 October 2025, the respondent's position was to admit (save for counts 1 and 7 to which she maintained a bare denial) all of the remaining counts but maintain that she had a reasonable excuse.

4. Given this, the proceedings were adjourned because the applicant had not received proper notice of any evidence the respondent may rely on for that purpose. This occurred after the applicant's evidence had concluded and Counsel for the parties had had an opportunity to make submissions on whether the applicant had established, to the requisite standard, that counts 1 and 7 had been contravened.

(As per the original, footnotes omitted)

1. The primary judge thereafter went on to consider whether the applicant had established that the respondent had contravened the Orders in the terms of Counts 1 and 7. The primary judge observed that the standard of proof is on the balance of probabilities. In relation to Count 1, the primary judge recorded as follows:
   1. The details of count 1 are set out at Annexure A. The allegation in count 1 concerned order 4 of the orders dated 5 November 2021, which was as follows:
      1. The child [X] born [...] 2014 ("the child") is at liberty to communicate with each of her parents at all reasonable times, and the parent who has the child in his or her care shall facilitate her requests for such contact.
   2. The applicant's evidence in support of count 1 was contained in his affidavit filed 10 February 2025 at paragraph 3 and 4 and documents attached at [...]. However, those paragraphs in the affidavit didn't expressly address the requirements of order 4 of the orders dated 5 November 2021. The documents at [...] were dated prior to March 2022. The applicant was not cross examined on this count.
   3. At the close of his client's evidence, Counsel for the applicant told the Court: "my instructions are to submit" the Court "can infer" on the basis that the applicant's evidence was his access was blocked, that requests for the child to speak with the applicant couldn't be facilitated and (although this was not said specifically) there was a contravention.
2. In relation to Count 7, the primary judge recorded as follows:
   1. In relation to count 7, at the close of his client's evidence, Counsel for the applicant said he was "instructed to submit" that his client relied on his affidavit evidence (specifically paragraph 20 of his affidavit filed 10 February 2025 and annexure [...] to that affidavit). Counsel for the applicant further submitted that the respondent had attended at the school on the day in question to remove the child from school prior to his client's time with the child commencing, and this was an "attempt to thwart [the applicant's] contact commencing" and that "that attempt to thwart [the applicant's] contact was a breach of the orders".
   2. Counsel for the respondent submitted that the applicant's own evidence showed he did collect the child and there was "no denial of time". Accordingly, it was submitted the Court could not be satisfied there had been a contravention as alleged.
   3. The terms of what was s.70NAC, are clear in prescribing the circumstances in which a person contravenes an order. Whilst Counsel for the applicant told the Court he was "instructed to submit" the evidence his client gave of what he said the respondent had tried to do was "in breach", his client's evidence fails to establish facts which would set out a basis upon which the Court could find on the balance of probabilities that the respondent contravened the orders as alleged in this count.

1. Subsection 102QAE(2) of the Family Law Act 1975 (Cth) enables a person who is subject to a harmful proceeding order to apply to the Court for leave to institute proceedings. A party seeking leave is required, pursuant to s 102QAE(3) of the Act, to file an affidavit in support of the application for leave. The section, in mandatory terms, directs the filing of an affidavit that:

(a) lists all the occasions on which the applicant has applied for leave under the section; and

(b) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

1. I am not satisfied that the applicant's affidavit substantially complies with s 102QAE(3) of the Act. In that respect, the applicant has not disclosed any relevant facts about the application whether supporting or adverse to the application that are known to the applicant. Given the mandatory provisions of s 102QAE(3), the application is liable to be dismissed for those reasons alone (s 102QAF(1)).
2. Section 102QAF(2) provides that the Court must make an order dismissing an application under s 102QAE if it considers the proceedings are vexatious. Pursuant to s 102QAG of the Act, the Court may grant leave only if it is satisfied that the proceedings are not frivolous, vexatious or an abuse of process and have reasonable prospects of success. This latter section casts an onus upon the applicant and a failure to discharge that onus means that leave will not be granted (Darley (No 4) [2023] FedCFamC1A 158).
3. Vexatious proceedings are defined in s 102Q(1) of the Act to include:

(a) proceedings that are an abuse of the process of a court or tribunal; and

(b) proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c) proceedings instituted or pursued in a court or tribunal without reasonable ground; and

(d) proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

1. An appeal that is without reasonable grounds is a vexatious appeal and must in accordance with the section be dismissed. The focus of the application is thus upon the applicant's draft Notice of Appeal. An analysis of the grounds reveals none to have merit.
2. Grounds 1 and 2 are interconnected. Grounds 1 and 2 contend albeit erroneously that where the orders contain interconnecting obligations, the primary judge erred in striking out Counts 2, 8, 12, 13 and 15. The grounds have no merit. An essential requirement of any contravention application is the requirement to properly plead and particularise the factual matters that are said to found the alleged contraventions (Allwright & Allwright [2024] FedCFamC1A 79). In respect of the counts struck out, counsel for the applicant in each instance conceded the count had not been properly pleaded. The applicant is bound by the way he conducted his case and concessions made on his behalf by his counsel (Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531 at [114]; TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [8] and [74]). No error of law was made by the primary judge in striking out counts that as conceded by his counsel were not properly pleaded and particularised. There is no merit to Grounds 1 and 2.
3. Ground 3 contends the primary judge erred in principle by accepting assertions of reasonable excuse which were not open on the evidence. The ground is specious; the primary judge has not yet determined whether the respondent has a reasonable excuse to the alleged contraventions. Ground 3 is without merit.
4. Ground 4 contends that the primary judge erred in failing to properly consider or engage with evidence relevant to the contraventions which amounted to a constructive failure to exercise jurisdiction. The ground as drawn is incomprehensible. A ground within a Notice of Appeal should precisely and concisely identify error. This ground does neither. The ground fails to articulate what was the material evidence the primary judge did not properly consider or engage with. It is not for the court to identify the errors in the judgment under appeal (Newett & Newett (No 2) (2021) FLC 94-051 at [34], quoting Bahonko v Sterjov [2008] FCAFC 30; (2008) 166 FCR 415 at [3]). The primary judge considered the applicant's evidence and the concessions made by his counsel in making Order 1. In making Orders 2 and 3, the primary judge considered the applicant's evidence and the applicant's submissions in the context of the orders. No error is apparent. Ground 4 is without merit.
5. Ground 5 contended as follows:
   1. The learned Judge denied the applicant procedural fairness by preferring untested and hearsay assertions of the respondent over sworn and corroborated evidence of the applicant, and by permitting procedural indulgences that materially affected the determination of the contravention application.
6. If established a failure to accord procedural fairness constitutes an error of law. As an appealable proposition it is directed to the fairness of the hearing itself. It has no application thereafter. Consequently, what it requires is that a party be given an opportunity to be heard and to present their case (Kioa v West (1985) 159 CLR 550). Where that opportunity is established, "it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the other party and to other litigants" (Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 174 at [94]).
7. Thus, the notion of procedural fairness relates only to the process and not the result. However not every denial of procedural fairness will give rise to a retrial. The asserted complaint must be material (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321).
8. There is no merit to the ground. The striking out of Counts 2, 8, 12, 13 and 15 was based upon a failure by the applicant to properly plead his case, a fact conceded by his counsel. It did not involve in any way a consideration of the respondent's evidence. To the extent that the ground contends that to be an error it is specious. Likewise, the dismissal of Counts 1 and 7 also involved an assessment of the applicant's evidence and did not involve in any way a consideration of the respondent's evidence. The applicant's contention that the primary judge preferred untested, or hearsay assertions is erroneous. The counts were struck out and/or dismissed entirely upon the failings of the applicant based on his evidence.
9. The applicant's contention that the primary judge denied the applicant procedural fairness by permitting procedural indulgences ignoring its offensive tone is specious. The onus rests with the applicant to properly plead and particularise his application and to adduce the evidence to warrant the findings he urges which he failed to do. He was heard on the application to strike out and dismiss and provided the opportunity to make submissions which were recorded by the primary judge. His real complaint is with the result, not with the process. He was not denied procedural fairness. There is no merit to Ground 5.
10. Where the appeal is devoid of merit and thus no reasonable prospects of success, the consequence is that it is vexatious within the terms of s 102Q(1) of the Act and the application must be dismissed.

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