Aon Risk Services Australia Ltd v Australian 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 the pseudonym Pauwels & Radu has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. Ms Pauwels ("the wife") and Mr Radu ("the husband") commenced cohabitation in July 1994 and married in 1995. There are two children of the marriage, both of whom are now adults. The parties first separated in October 2009. On 15 September 2010 they entered final consent orders adjusting their property pursuant to s 79 of the Family Law Act 1975 (Cth) ("the Act"). They reconciled their marriage relationship in October or November 2010 and effected a final separation on 16 May 2022. An order for divorce was made in early 2024.
2. By way of an Initiating Application filed on 17 October 2023, as amended on 8 December 2023, in the Federal Circuit and Family Court of Australia (Division 2), the wife sought pursuant to s 79A of the Act to vary or set aside the 15 September 2010 orders and for other orders to be made adjusting the current property of she and the husband. By way of a Response to an Initiating Application filed on 22 December 2023, the husband agreed to set aside the orders made on 15 September 2010 pursuant to s 79A(1A) of the Act and sought different orders as to the adjustment of property of he and the wife.
3. Notwithstanding the attendance at a mediation with Mr C of counsel in February 2025 and a number of orders and directions, no joint balance sheet was filed until 9.50 am this morning. That document became Exhibit 1 before me today.
4. There have been 17 listing events in these proceedings prior to today. The preparation of the proceeding for trial has not progressed.
5. Orders were made in November 2023 appointing Ms B as the single expert appointed pursuant to ch 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") to opine as to the value of the extensive corporate and trust interests of the husband. The parties agreed to retain Mr D to opine as to the trading enterprises held by those corporate interests in April 2025. Neither Mr D's nor Ms B's opinions have been furnished. It is of note that Ms B's opinion will provide a valuation as at 30 June 2023, more than two years antique. The husband concedes delays in responding to the experts' requests for information. It is understood that both Mr D's and Ms B's opinions may be available within the next six to eight weeks. The parties are now in dispute as to the date to be fixed for an update to Ms B's yet to be received opinion.
6. In September 2024 orders were made directing the appointment of a ch 7 single expert to value Country E real property held by the wife. Save as to costs, for reasons that remain somewhat unclear, the appointment of that expert has yet to progress.
7. Additionally, for other reasons which remain unclear, the interests that the husband holds either directly or indirectly in real property in Country F, or other interests of a property nature in Country F, are yet to be the subject of ch 7 single expert evidence.
8. The failure or neglect of the parties to comply with directions and/or the Rules of court, coupled with their failure to make application when appropriate, resulted in the proceedings being listed in the Division 2 defaulters list on 26 September 2024.
9. Orders and notations were made by a senior judicial registrar on 12 March 2025 recording the failure or neglect of the parties to seek extensions for timeframes to comply with prior orders and directions and that the husband had filed an Application in a Proceeding on 17 February 2025 seeking dismissal of the Wife's Initiating Application, as amended, pursuant to r 10.27 of the Rules. That application appeared to be grounded from the wife's contended disclosure failures. The wife's solicitor who appeared on 12 March 2025 identified the wife's failure to comply with some of the prior orders made by the Court and a failure on her part to seek any extension of time to comply with those orders. Consequently, the matter was listed again in the defaulters list in Division 2 on 7 April 2025.
10. The parties' compliance with their obligations as codified in the legislation and by way of r 1.04 of the Rules did not improve prior to the appearance before Judge Murdoch in Division 2 on 7 April 2025. At that time the following orders and notations were made:

THE COURT ORDERS THAT:

1. For any "incoming" payment described in the table attached hereto and marked as "Annexure A", the Applicant Wife shall within twenty-eight (28) days:

1.1. identify the bank account into which the monies were deposited, such identification to include the name of the bank with which the bank account is held, the address of the branch where the bank account is held, the BSB of the bank account, the name of the bank account holder, and the account number of the bank account;

1.2. if not already disclosed by the respondent, provide statements of all the bank accounts from the date of deposit of the monies to the date of these orders;

1.3. identify the bank account from which the monies were transferred, such identification to include the name of the bank with which the bank account is held, the address of the branch where the bank account is held, the IBAN (international bank account number), the SWIFT/BIC code (also known as the Bank Identifier Code), the name of the bank account holder, and the account number of the bank account;

1.4. if not already disclosed by the respondent, provide statements of all the bank accounts from the date of withdrawal of the monies to the date of these orders;

1.5. provide all documents as to how such monies were applied.

1. For any "outgoing" payment described in the table attached hereto and marked as "Exhibit A", the Applicant Wife shall within twenty-eight (28) days:

2.1. identify the bank account into which the monies were deposited, such identification to include the name of the bank with which the bank account is held, the address of the branch where the bank account is held, the IBAN (international bank account number), the SWIFT/BIC code (also known as the Bank Identifier Code), the name of the bank account holder, and the account number of the bank account;

2.2. if not already disclosed by the respondent, provide statements of all the bank accounts from the date of deposit of the monies to the date of these orders;

2.3. provide all documents as to how such monies were applied.

1. By no later than 4:00 pm on 5 May 2025, the Applicant Wife is to file and serve an Undertaking as to Disclosure in accordance with Rule 6.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

2. The balance sheet filed by the Applicant Wife on 25 September 2024 is marked as "Exhibit A".

3. The balance sheet filed by the Respondent Husband on 25 September 2024 is marked as "Exhibit B".

4. The parties are to have filed a draft Joint Balance Sheet no later than 48 hours prior to the next listing of the matter such that:-

(a) The Applicant shall by no later than 4:00 pm 14 days prior to the next listing serve upon the Respondent a draft balance sheet to include all assets, liabilities, superannuation interests, financial resources and property suggested to be relevant and to include values as alleged by each party;

(b) the Respondent shall then within 7 days of receipt of the draft balance sheet make any additions to the balance sheet as required to reflect contra allegations by the Respondent and any values that are agreed (if applicable);

(b) wheresoever controversy exists as to the inclusion of an item or the value of an item a footnote shall be appended to explain the controversy;

(c) upon completion of any Single Expert valuation the balance sheet shall be amended to reflect determined/agreed values; and

(d) the final, settled version of the Balance Sheet shall thereafter be filed by the Applicant.

1. The Compliance and Readiness Hearing before Judge Murdoch at 9:15 am on 16 May 2025 is vacated.

8. The parties' costs of today are reserved.

1. By consent, the matter is transferred to Division 1 of the Federal Circuit and Family Court of Australia, Sydney Registry noting that the matter involves complex property issues including multiple real properties, shareholdings and interests in corporate entities. The parties estimate the net property pool to total $22,384,000.

THE COURT NOTES

1. These are proceedings commenced by the Applicant Wife on 17 October 2023 as amended on 8 December 2023 seeking orders as to the adjustment of property pursuant to s79 of the Family Law Act 1975 (Cth). The Husband's Response was filed on 22 December 2023.

B. The parties lived together for a period of 28 years. There are two adult children.

1. The Husband has filed two Applications in a Proceeding to date, and the Wife one.

2. The matter was listed in the Defaulter's List on 26 September 2024 and again on 7 April 2025.

3. There remains an outstanding Application in a Proceeding filed by the Respondent Husband on 17 February 2025. Some Orders were made today arising from such application. The balance of the Application in a Proceeding may no longer be pressed. The Respondent Husband will be in a position to advise as to this when the matter is next before the Court.

4. There are several corporate entities that have not yet been valued, however it is anticipated that such valuations will be completed shortly.

(As per the original)

1. After the transfer of the proceedings to this forum on 7 April 2025, I conducted a review of the matter in chambers. On 10 April 2025 the following orders were made:

THE COURT ORDERS THAT:

1. On or before 24 April 2025 each of the applicant and the respondent are to file a Financial Questionnaire.

2. The orders made by Judge Murdoch in the Federal Circuit and Family Court of Australia (Division 2) on 7 April 2025, and specifically Order 6 as to the parties conferring and filing a draft, joint balance sheet, are confirmed, and such joint balance sheet is to be filed and served by the applicant wife on or before 30 May 2025.

3. On or before 19 May 2025 the applicant wife is to file and serve any Amending Initiating Application setting out with particularity the final orders sought.

4. On or before 26 May 2025 the respondent husband is to file and serve any Amending Response to an Initiating Application setting out with particularity the final orders sought.

5. In circumstances where the matter was listed in the defaulters list in the Federal Circuit and Family Court of Australia (Division 2) on 26 September 2024 and 7 April 2025, the parties are on notice that in the event a party fails or neglects to comply with the orders made on 7 April 2025, and these orders, the Court will consider, on its own motion, dismissing the substantive relief of the party in default on the next listing and granting the other party leave to proceed on an undefended basis.

(Emphasis in original)

1. The matter was then listed for a compliance and readiness hearing in person today.
2. Importantly, the wife filed an undertaking as to disclosure on 5 May 2025 recording as follows:

1. I have read or had read to me, Parts 6.01 and 6.02 of the [Rules];

1. I am aware of my duty to the Court and to each 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;

3. I undertake to continue to comply with my duty of disclosure until the conclusion of the case;

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

(As per the original)

1. The wife filed an extensive affidavit on 27 May 2025 identifying complaints as to the disclosure of documents and information by the husband, including as to his corporate interests and as to real estate disposals. She further set out extensive history regarding the challenges encountered in progressing Ms B's single expert opinion and as to dispute between the parties regarding the date of any update to that opinion. She gave some evidence as to difficulties encountered in complying with orders and directions and her obligations pursuant to the Rules by way of inactivity on the part of her prior legal representatives and as to efforts she had undertaken to identify and comply with disclosure requests made by the husband. The affidavit sets out her requests for disclosure from the husband as to his Country F property interests.
2. The husband identified today that he no longer proposes to progress the balance of the relief in his Application in a Proceeding seeking dismissal of the wife's Initiating Application, as amended, pursuant to r 10.27 of the Rules. He properly accepts that any disclosure failure of the wife will be the subject of determinations at the final hearing. In the circumstances, his Application in a Proceeding filed 17 February 2025 will be dismissed.
3. The husband, over objection, has today filed an affidavit of his solicitor sworn 2 June 2025. The affidavit makes complaint as to the wife not disclosing Country E bank accounts and gives some explanations as to his delay in complying with the requests originating from Ms B for documents and information to complete her work. He further gives some evidence as to engaging with Mr D. The contents of the affidavit as to the contended disclosure failures regarding Country E property owned by the wife do not appear to progress that issue.
4. The husband, through counsel today, advised he will be able to file an undertaking as to disclosure on or before close of business on 6 June 2025. Exhibit 2 in the proceedings today, being the wife's proposed initial minute of order, identifies extensive disclosure sought by the husband. The filing of an undertaking by the husband will engage with and ensure compliance with that request.
5. It is against this background that the wife's oral application for leave to strike out the husband's Response to an Initiating Application filed on 22 December 2024 and to proceed to have her Initiating Application, as amended, determined on an undefended basis, takes context.
6. The parties were given an opportunity over the lunch adjournment to navigate a constructive pathway forward in respect of the preparation of this matter for trial. They could not effectively reduce any such pathway to an agreement in writing.

1. There is a chronic history of each of these parties failing or neglecting to comply with this Court's orders and directions, and with the Rules. Each party has at different times failed to comply with the provisions identified in s 95 and s 96 of the Act and r 1.04 of the Rules. While each contends the fault lays at the feet of the other, the flow of the tide currently is against the husband. So that it is clear, there is no foundation for the husband's failure to:

(a) Comply with the filing of a financial questionnaire in accordance with the Rules as provided for by Order 1 made on 10 April 2025; and

(b) Engaging with the wife pursuant to the order made on 7 April 2025 as to the preparation of a collaborative balance sheet; and

(c) Filing and serving a certificate of readiness for the purposes of the listing today pursuant to the orders made on 26 September 2024.

1. These parties are not entitled to continue to consume an excessive amount of judicial and administrative court resources. I reject that their inability to resolve the disputes today as to the progression of expert evidence is a circumstance justifying their non-compliance.
2. The inability of the parties over the course of today to identify how their litigation ought to be determined going forward is reflective of their approach to this litigation over the past two years. It is contrary to their obligations as litigants, it is unacceptable and will not receive a modicum of endorsement. The parties are provided with a final opportunity to progress their matter. Directions will be made broadly for:

(a) On or before close of business on 4 June 2025, the parties to confer in person and to provide to chambers by that time, a joint minute of order as to the progression of the litigation; and

(b) In the event no such consent order is provided to chambers, within such specified time, each of the parties to file and serve written submissions as to why each of their substantive applications or responses ought not be struck out. That determination, if necessary, will be reserved to chambers.

(c) In the event a consent minute of orders is received as directed, the parties are invited to indicate when the matter ought next be returned to the court for the purposes of a compliance and readiness hearing. If received, orders will be made in chambers to progress that event.

1. It is a matter for the husband and the wife to assume responsibility for how they conduct the litigation. If they are unable to comply with their obligations as litigants, the provision of judicial and administrative resources of this forum to the party in default will no longer be available. If it prejudices their rights, then so be it. The efficient disposal of the Court's overall caseload and the determination of proceedings in a timely manner are integral spokes in the wheel of modern case management, directed not only to the fairness and finality of these parties, but to all court stakeholders.
2. The High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 provides authority for courts to take into account case management principles when exercising discretion in procedural applications, even to the prejudice of a party in a particular proceeding. The High Court has made it plain that parties are not entitled to consume an unlimited quantity of public resources in the pursuit of their own interests.
3. So that it is reinforced to the parties, while case management is not an end in itself, its goal is to create justice for all stakeholders and for the community at large.
4. For all of the above reasons, I make the orders as set out herein.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton.