Aon Risk Services Australia Ltd v Australian National University

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

1. These reasons determine a joint application for adjournment of a trial listed to commence today for three days in proceedings as to the adjustment of property pursuant to s 79 of the Family Law Act 1975 (Cth) ("the Act") as between Mr Valeas ("the husband") and Ms Valeas ("the wife").
2. They married in 1997, having six children currently aged between 26 and 17 years of age, separating in August 2021. An Order for Divorce was made in early 2025.
3. The husband commenced proceedings for the adjustment of property between he and the wife in the Federal Circuit and Family Court of Australia (Division 2) on 5 December 2023. The wife's mother, Ms Roldan, was joined as the second respondent to the proceedings. She holds a one per cent share of a real property otherwise legally held as tenants in common by the husband and the wife in 98 per cent and one per cent respective shares. It is an agreed fact between the husband and the wife that the wife's mother beneficially holds her legal interest in that property for them. The wife's mother has not participated in the proceedings.
4. The proceedings were transferred to this Court on 27 February 2025. An extensive case readiness hearing was conducted on 21 March 2025. Comprehensive directions for trial were made with the matter listed for hearing over three days, commencing today.
5. The parties engaged in an unsuccessful private mediation with Mr O on 24 April 2025. The proceedings were listed before me on 30 April 2025. The preparedness of the matter for trial was confirmed.
6. Shortly before 8.00 pm yesterday evening, the solicitors for the husband sent correspondence to my chambers on behalf of both parties identifying their joint proposal for a consent adjournment of the trial listed to commence this morning. The husband reads an affidavit filed last night at 10.50 pm in support of the application for an adjournment.
7. Dispute exists between the parties as to whether the husband, by way of an email in March 2023, sought access to documents contained in the parties' home at 1 L Street, Suburb N ("the Suburb N property"), being a residence occupied by the wife. It is the husband's case that bank statements, business records, contracts, agreements and other documents were located at that time in the basement of the home.
8. Further disputes exist as to whether, after the commencement of the proceedings, the husband's prior solicitors sought those same documents from the wife. The husband says that the correspondence sent to the solicitors for the wife seeking those documents was not the subject of a satisfactory response. The chain of correspondence was not adduced in evidence in support of the adjournment application.
9. Remarkably, notwithstanding this litigation had been on foot in Division 2 for more than 12 months, neither party filed an application in that forum seeking disclosure of or access to the documents in the possession of the other.
10. It is the husband's evidence that when he swore his trial affidavit on 21 April 2025, he did not have access to the documents he identified that remain at the home.
11. The husband identifies that he received the wife's trial affidavit on 22 April 2025. He says that annexed to that affidavit are documents which fall within the category of documents he sought that the wife disclose in 2023. It is his evidence that those documents were contained in boxes and a filing cabinet in the basement of the Suburb N property. It is his case that an examination of the wife on the contents of her trial affidavit will lead to a conclusion that she had access to those very documents when preparing her trial material.
12. The husband has adduced into evidence belated exchanges of correspondence in late April 2025 passing between the respective solicitors concerning access to the documents he contends were in the possession of the wife at that time. He gives evidence as to a letter being sent by his solicitors on 23 April 2025 seeking to obtain the documents in the basement of the property. Some seven days later, on 30 April 2025, the husband received from the wife's solicitors a google drive link containing 1,266 documents. It is his case that some of the documents on the google drive are identified as being documents that the wife proposes to adduce to support contested factual findings sought in the s 79 proceedings. It is his case that documents that may be within the basement of the Suburb N property may inform forensic processes he wishes to pursue during the trial.
13. The wife concedes there may be some prejudice occasioned to the husband in conducting the trial arising from the fact of him not having access to the documents contained within the basement of the home.
14. Both parties propose, by way of Exhibit 1, the agreed minute of proposed consent order, that the wife, within seven days, make available for collection from the offices of her solicitors, the documents of the husband located in the basement of the Suburb N property.
15. Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("the Rules") identifies the obligations of disclosure of parties in s 79 proceedings. It provides that a party to those proceedings has a duty to the court and to the other party to give full and frank disclosure of all information relevant to the proceeding in a timely manner. Information may be by way of documents or may be by way of other processes. The Rules contain an explicit identification as to the consequences of a failure to comply with a duty of disclosure.
16. It is self-evident, by way of the content of the proposed consent order for adjournment, that the wife concedes that the documents in the basement of the Suburb N home may have potential relevance to an issue in the proceedings.
17. Each of the parties to these proceedings have filed an undertaking as to disclosure in compliance with the Rules, the husband on 20 March 2025 and the wife on 11 April 2025. The undertakings record:

1. I have read or had read to me, Parts 6.1 and 6.2 of the [Rules];

1. I am aware of my duty to the Court and to each other party including any independent children's lawyer to give full and frank disclosure of all information relevant to the issues in the case in a timely manner;

2. I undertake to the Court that to the best of my knowledge and ability, I have carried out and complied with my duty of disclosure;

...

1. I understand the nature and terms of this undertaking and that if I breach the undertaking I may be guilty of contempt of court.

1. Rule 6.17 of the Rules identifies the consequences of non-disclosure. It may generate challenges for the wife. Any potential challenge will crystalise during her cross examination. The rule provides as follows:

6.17 Consequences of non‑disclosure

If a party does not disclose a document as required by these Rules:

(a) the party:

(i) must not offer the document, or present evidence of its contents, at a hearing or trial without the other party's consent or the court's permission; and

(ii) may be guilty of contempt for not disclosing the document; and

(b) the court may stay or dismiss all or part of the party's case.

1. Section 95 and s 96 of the Act records as follows:

95 Overarching purpose of the family law practice and procedure provisions

(1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:

(a) in a way that ensures the safety of families and children; and

(b) in relation to proceedings under this Act in which the best interests of a child are the paramount consideration - in a way that promotes the best interests of the child; and

(c) according to law; and

(d) as quickly, inexpensively and efficiently as possible.

(2) Without limiting subsection (1), the overarching purpose includes the following objectives in relation to proceedings under this Act:

(a) the just determination of all such proceedings;

(b) the efficient use of the judicial and administrative resources available for the purposes of courts exercising jurisdiction in such proceedings;

(c) the efficient disposal of the overall caseload of courts exercising jurisdiction in such proceedings;

(d) the disposal of all such proceedings in a timely manner;

(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(3) The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make applicable Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

(4) The family law practice and procedure provisions are the following, so far as they apply in relation to proceedings under this Act:

(a) the applicable Rules of Court;

(b) any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia or any other court_._

96 Duty to act consistently with the overarching purpose

Duty of parties

(1) The parties to proceedings under this Act must conduct the proceedings (including negotiations for settlement of the dispute to which the proceedings relate) in a way that is consistent with the overarching purpose of the family law practice and procedure provisions.

(2) A party's lawyer must, in the conduct of proceedings under this Act on the party's behalf (including in the conduct of negotiations for settlement of the dispute to which the proceedings relate):

(a) take account of the duty imposed on the party by subsection (1); and

(b) assist the party to comply with the duty.

(3) In proceedings under this Act a court may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party's lawyer to give the party an estimate of:

(a) the likely duration of the proceedings or part of the proceedings; and

(b) the likely amount of costs that the party will have to pay in connection with the proceedings or part of the proceedings (including the costs that the lawyer will charge to the party).

(4) In exercising the discretion to award costs in proceedings under this Act, a court must take account of any failure to comply with the duty imposed by subsection (1) or (2).

(5) Without limiting the exercise of that discretion, a court may order a party's lawyer to bear costs personally.

(6) If a court orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from the lawyer's client.

(1) The overarching purpose of these Rules, as provided by section 67 of the Federal Circuit and Family Court Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

(2) Parties to family law proceedings must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.

(3) A party's lawyer must, in the conduct of a proceeding before the court (including negotiations for settlement) on the party's behalf:

(a) take account of the duty imposed on the party referred to in subrule (2); and

(b) assist the party to comply with the duty.

1. The application of the provisions of s 95 and s 96 of the Act are mandatory. The Act and the Rules imposes upon the court and the parties' obligations and duties in the discharge of the court's function, including the facilitation of the just resolution of the proceedings, according to the law, in as quickly, inexpensively and efficiently as possible.
2. These reasons record many "mays" as to the documents in the basement. Both the husband and the wife say that the documents in the basement "may" inform forensic processes or "may" be relevant. Neither party asserts with precision the nature, category, or date of any potential document in the basement that may establish a nexus to the resolution of a factual issue in dispute in the trial.
3. There is an absence of evidence in the husband's case as to him exercising his capacity pursuant to the Rules to obtain possession of the documents from the basement of the Suburb N property. There is self-evident a failure of the wife to comply with her obligations as codified by the Rules. Issues may exist as to the integrity of her undertaking of disclosure filed 11 April 2025.
4. The provisions of the Act and the Rules ought to be read together. As a matter of construction, the court must, in all proceedings before it pursuant to the Act, implement the mandates of s 95 and s 96 and to otherwise engage with the overarching purpose of the Rules.
5. How these parties have conducted this litigation has a broad impact. Concepts of finality and fairness are relevant. The High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 ("Aon Risk") identified it is necessary for superior courts to take into account case management principles when exercising discretions in determining procedural applications, such as an application for adjournment of a trial on the first morning, in light of the circumstances of the history identified in these reasons, even if it may be to the prejudice of one or both of the parties to the proceedings.
6. The High Court in Aon Risk re-emphasised that it is not sufficient to pursue just procedural outcomes merely by reference to the interests of the parties to a particular proceeding. The effects of procedural decisions impact on other litigants and on the public's interest in the efficient use of the court's resources. This is a significant matter to consider in the application for adjournment of the trial made in the circumstances of these proceedings, and at the time that it is made in these proceedings. The notion that these parties are entitled to consume unlimited amounts of public resources in the pursuit of their own interests is abhorrent and ought not receive a modicum of endorsement.
7. In all the circumstances and weighing all the factors that have been identified in these proceedings, the application for an adjournment will be refused.
8. If these parties wish to engage in a process of compromise, they ought to achieve that opportunity. If these parties wish to pursue alternate dispute resolution processes, such as arbitration at their own cost, or if they elect to discontinue their respective applications for an adjustment of property in this court with a view to recommence the s 79 matter in Division 2, they can adopt such course.
9. For all of these reasons, I make the orders set out herein.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton.