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

1. These reasons relate to various oral applications that were made by each of the parents in parenting proceedings on the first day of a trial listed with a time estimate of 10 days.
2. The applications concern matters relating to the evidence the parties proposed the court hear during the trial, together with an adjournment of the commencement of the trial. Those applications were:

(a) The Applicant mother's applications:

(i) for leave to issue subpoenas to the children's treating therapists to produce documents and give evidence at the final hearing; and

(ii) to adjourn the commencement of the final hearing to 5 February 2026 (what would have been day four of the trial listing);

(b) The Respondent father's applications for leave to:

(i) rely upon the affidavits of each Ms HH filed on 23 November 2023 and Ms AM filed on 23 November 2023 at the final hearing;

(ii) issue a subpoena to Mr AB to produce documents and give evidence at the final hearing; and

(iii) to amend the final orders sought by him as set out in his Further Amended Response filed on 19 December 2025.

1. The father ultimately did not press his application to amend the final orders sought by him.
2. The parties did not otherwise each oppose the applications pressed by the other of them.
3. The parties' respective applications were dismissed on the first day of the trial, with the parties advised that reasons would be separately published. These are those reasons.

1. The substantive proceedings before the court relate to the parenting arrangements for the parties two children, X born in 2015 and Y born in 2017.
2. The proceedings have a lengthy history before the court, in circumstances where this is the second round of parenting litigation for these parties in relation to the parenting arrangements for X and Y.
3. The first tranche of parenting proceedings were commenced in the Federal Circuit Court of Australia (as it was then known) in September 2020 by the mother at a time when the child X was five years of age and Y was three years of age. It is uncontroversial that the parties had been in a relationship between December 2013 and early September 2019.
4. Without traversing in detail the history of the litigation, the proceedings were ultimately transferred to this court and a trial was heard by Berman J across seven days in May 2023, with judgment delivered on 15 September 2023 (Kennedy & Peyton [2023] FedCFamC1F 790 ("Kennedy & Peyton")). That judgment was not the subject of any appeal.
5. The final parenting orders made by Berman J on 15 September 2023, in essence, provided for the children to live with the mother and for her to have sole parental responsibility (provided she consult with the father), and for the children to ultimately spend time with the father on alternate weekends from 24 November 2023 from 5.00pm on Friday until 5.00pm on Sunday, together with special occasions. All time spending between the children and the father was however to take place "substantially in the presence" of certain persons until the child Y turned nine years of age. In addition, the mother was permitted to relocate the children from their then home in Town L, South Australia to City JJ, Victoria.
6. A significant issue in the first tranche of the proceedings, and seemingly ongoing, are events which relate to the father's child D (born in 2020), who was born from a relationship which overlapped with the parties' relationship. Of significance, it ought be understood that it is uncontroversial between the parties that D is subject to an order placing him in state care and that he is now living with foster carers.
7. The circumstances which led to D being removed from the care of the father and D's mother, as found by Berman J in Kennedy & Peyton, is that following a forensic medical assessment in September 2020:
   1. [D] was diagnosed as presenting with [multiple fractures] and [multiple suspected fractures]. The [fractures] were considered to be of differing ages comprising [of multiple recent fractures], [multiple fractures that were healing] and [multiple fractures of indeterminate age]. He also presented with elevated [organ] enzymes consistent with [organ] trauma.

1. The nature, position, number and differing ages of the fractures were considered by CPS to be inconsistent with accidental or inadvertent injury. The implication, as will be discussed, is that a more plausible explanation is that the injuries sustained by [D] were deliberate.

1. Of some significance in the present tranche of the litigation is that Berman J made findings in Kennedy & Peyton, in relation to the cause of D's injuries which included:

(a) Rejecting the possible explanations for D's injuries given by the father that included the child Y dropping something on D, the father's "overzealous" "play activity" with D or a sibling "jumping or tripping and falling" on D (at [213]-[218]);

(b) The father's reluctant admission that D's injuries could only have occurred whilst in his care, the care of his mother or less likely the care of D's maternal grandparents (at [145]);

(c) A finding that D's injuries had been "deliberately inflicted... over a period between May and September 2020" (at [271]); and

(d) A finding that either the father or D's mother were responsible for D's injuries (at [276]).

1. It was the mother's case when the proceedings were heard by Berman J that (Kennedy & Peyton at [35]):
   1. ... the father presents as an unacceptable risk to the children arising out of any direct threat, action or behaviour of him towards the children but rather whether the circumstances surrounding the manner in which [D] sustained grievous injuries could result in a finding that the father presents as an unacceptable risk to the children.
2. It was the father's case before Berman J, as it remains now, that he was not responsible for D's injuries. In his trial affidavit filed in the current tranche of the proceedings on 19 December 2025 the father deposes:
   1. I did not harm [D], I do not believe that [D's mother] harmed [D].
   2. I do not now seek to reagitate the issue, but say that I did not get a fair hearing with respect to it.
   3. I did not appeal the Judgement in circumstances where I had been financially decimated, I had not funds, I was content enough with the parenting Orders that had been made, and in any event, I had significant doubts as to whether the mother would comply with whatever Orders were made.

...

1. I found it extremely difficult to consider the possibility that [D] was deliberately harmed by anyone, I thought that there must have been an accident and that [D] may have an underlying medical condition that made him prone to bone breakage.

...

1. It subsequently occurred to me that I may have injured [D] when hugging him and the other two children at the same time, which is something I did on occasions. I made enquiries with respect to that possibility and the nature of [D's] [...] injuries. I have now come to accept that there is a significant possibility that [D] was deliberately harmed.

1. The current proceedings were commenced by the mother on 2 November 2023 within short compass of the conclusion of the first tranche of the proceedings. The reasons for this, is that there had been a significant deterioration in the mental health of the child Y, which included emotional dysregulation, Y's refusal to attend time spending with the father, Y threatening self-harm, including threats to kill herself, and Y physically threatening her sister X with a knife.
2. The mother at that juncture asked the court to make orders suspending the father's time spending with the children and instead that the court make orders which provided for the father to have supervised time with the children at a professional contact service.
3. When he filed his responding documents, the father opposed the mother's Initiating Application and was critical of the approach taken by the mother to the crisis which then presented.
4. Argument was heard in relation to the parties competing interim applications on 31 May 2024 and orders were made on 14 June 2024 which provided for a discharge of the final orders as to the father's time spending with the children and replaced the same with orders which provided for the father to spend professionally supervised time with the children once each month for a period of two hours (Kennedy & Peyton (No 2) [2024] FedCFamC1F 402). Those interlocutory parenting orders were also not the subject of appeal.
5. On 20 February 2025, the father filed an Application in a Proceeding in which he sought parenting orders that provided for X to spend unsupervised time with him building to time on alternate weekends commencing at 5.30pm on Friday until 4.00pm on Sunday, increasing to 5.00pm Tuesday in school holidays, and that any time spending between Y and the father be subject to Y's wishes.
6. The mother asked the court to dismiss the father's Application in a Proceeding.
7. The court subsequently heard and dismissed the father's Application in a Proceeding with orders made by Christie J on 17 March 2025 (Kennedy & Peyton (No 3) [2025] FedCFamC1F 167).
8. On 22 July 2025 orders were made listing the current proceedings to a final hearing commencing 2 February 2026, with a 10 day allocation.
9. It is necessary, when considering the present applications, to record certain notations and orders made that day ("the trial directions"):

THE COURT NOTES:

...

1. The Applicant Mother intends to rely on the evidence of herself, together with that of three witnesses, namely:

2. [Dr AS], a psychiatrist from CAHMS that has prepared a report in relation to the child [Y];

ii. [Ms AU], the child [Y's] psychologist;

iii. [Ms AV], the child [X's] psychologist.

1. The Respondent Father intends to rely on the evidence of himself, together with that of three witnesses, namely:

i. [Ms AM], observer of the father's time;

ii. [Ms HH], the paternal aunt;

iii. [Ms AW] from [VV Contact Service].

...

THE COURT ORDERS:

...

EVIDENCE

1. No later than 4.00pm on 5 December 2025 the applicant mother shall file and serve:

a) An Amended Initiating Application particularising the final orders sought; and

b) A consolidated trial Affidavit for each witness they intend to rely upon at trial.

1. No later than 4.00pm on 19 December 2025 the respondent father shall file and serve:

a) An Amended Response particularising the final orders sought; and

b) A consolidated trial Affidavit for each witness they intend to rely upon at trial.

1. No later than 4.00pm on 5 January 2026 the applicant shall file and serve any Affidavit in reply with such Affidavit to be limited to 7 pages.

5. Unless leave is otherwise given:

a) The evidence in chief of all witnesses is to be given by affidavit;

b) Any affidavit, save and except those of any expert, is not to include annexures/exhibits;

c) Each party is permitted to rely on one affidavit only for each witness;

d) No party shall be permitted to rely upon any affidavit or document previously filed and/or that has not been filed in accordance with these orders.

1. Any affidavit filed pursuant to these orders is to comply with Rules 8.15(1), 8.15(2), 8.16 and 8.17 of the FCFCOA (Family Law) Rules 2021 (Cth).

...

DOCUMENTS TO BE PREPARED FOR TRIAL

Objections

1. No later than 4.00pm on 12 January 2026 each party shall notify the other party of any objection taken to any material filed by that party, with such objection to be in a schedule and particularising:

a) The paragraph or part of the paragraph objected to; and

b) The ground of objection.

1. No later than 16 January 2026 the other party shall respond to any objection made pursuant to order 12.

2. No later than 4.00pm on 21 January 2026 the parties shall confer in relation to any objections made pursuant to order 12.

Case Outline

1. No later than 4.00pm on 27 January 2026 the parties shall each file and serve a Case Outline which includes the following (divided into headings):

a) The filed documents to be relied upon;

b) The precise final orders sought (if different to those set out in the Application/Response);

c) A short chronology of significant events;

d) A summary of the issues in dispute;

e) A concise summary of argument;

f) A precise list of the factual findings that they contend should be made by the court and in relation to each factual finding there is to be reference to the paragraph number in the filed material and/or a precise reference to the document that supports the making of the factual finding;

g) In a parenting case submissions addressing s60CC of the Family Law Act 1975;

h) A list of any relevant authorities, together with submissions as to their relevance; and

1. A list of objections about which a ruling is sought from the court following compliance with orders 12 to 14.

Cost Notice

1. No later than 4:00pm on 27 January 2026 the parties do file and serve a Costs Notice in accordance with Rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

Joint Chronology

1. No later than 4:00pm on 16 January 2026 the parties are to confer and thereafter and no later than 4.00pm on 27 January 2026 the applicant is to file and serve a joint chronology setting out all of the agreed facts that the parties ask the Court to take into account.

TENDER BOOK

1. No later than 4:00pm on 16 January 2026 each party is to provide by email to each other and to the Associate of Justice Kari (by email at: [...]) a drop box link to an electronic tender book OR deliver a USB containing an electronic tender book marked with the file number to the Adelaide Registry addressed to the Chambers of Justice Kari with such tender book to include any document which has not been filed, but which that party may wish to tender at trial.

...

FURTHER PROCEDURAL ORDERS

21. Liberty is granted to each of the parties to:

1. Approach the Judicial Registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

2. To relist the matter at short notice in relation to trial directions or any application for leave for subpoena to issue.

(Emphasis in the original)

1. The relevant portions of r 8.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") referred to in Order 6 provides:

(1) An affidavit must:

(a) be divided into consecutively numbered paragraphs, with each paragraph being, as far as possible, confined to a distinct part of the subject matter; and

(b) state, at the beginning of the first page:

(i) the file number of the proceeding for which the affidavit is sworn (or affirmed); and

(ii) the full name of the party on whose behalf the affidavit is filed;

(iii) the full name of the deponent;

(iv) the full residential address of the deponent, unless disclosing this address would compromise the deponent's safety; and

(c) have a statement at the end specifying:

(i) the name of the witness before whom the affidavit is sworn (or affirmed) and signed; and

(ii) the date when, and the place where, the affidavit is sworn (or affirmed) and signed; and

(d) bear the name of the person who prepared the affidavit.

Note 1: An affidavit must also comply with the requirements for documents in rule 2.14.

Note 2: A professional witness may provide a business address in place of a residential address.

(a) the deponent of an affidavit is a party; and

(b) the affidavit does not disclose the deponent's address; and

(c) the deponent's address has not already been provided to the court;

the deponent's address must be provided to the court by email and the address must not be disclosed other than in accordance with an order of the court.

1. The combined effect of the trial directions required that there be no annexures to affidavits and that in addition any documents that had been annexed to any lay witness affidavit (in breach of Order 5(b)), much like any documents in either party's tender bundle, would not be in evidence unless tendered into evidence during the final hearing (subject to any objection).
2. Without extension having been granted, the mother filed her trial evidence late on 15 and 16 December 2025 (in breach of Order 2). The father filed his trial evidence in accordance with Order 3 on 19 December 2025. When doing so, neither party filed any witness affidavit as contemplated by each of them in Notations F and G of the trial directions.
3. The mother's trial affidavit filed on 15 December 2025 consisted of 35 pages of sworn evidence and 217 pages of exhibits; the inclusion of the latter being in clear breach of Order 5(b) of the trial directions. Included in those annexures, it is apparent from the body of the mother's affidavit, were various reports/documents authored by the treating experts referred to in Notation F of the trial directions.
4. With an extension of time having been granted, counsel for each of the parties filed their respective Case Outline for the final hearing (in purported compliance with Order 15 of the trial directions) on 28 January 2026. In relation to each of those documents neither set out any objections to evidence upon which rulings were sought.
5. In addition, the parties did not comply with Order 17 of the trial directions for the filing of a joint chronology identifying any agreed facts.
6. The parties otherwise complied with Order 18 for the provision of tender books, and in addition Order 16 (albeit late on the mother's part) for the filing of a Costs Notice.

EVENTS ON THE FIRST DAY OF TRIAL & THE ORAL APPLICATIONS

1. Against this background, and in reading the trial material filed by each party in accordance with the trial directions the court formed the view that the ten day trial allocation would not be needed; particularly as the only witness' being called to give evidence in the proceedings were the parties themselves and the expert who had prepared the Family Report in the proceedings, Ms AX.
2. At 9.37am on the first day of the trial (2 February 2026) the court received an email from the father's solicitors attaching a document described as a "Joint Memorandum of Counsel" (which was ultimately received as Exhibit "J1"). Relevantly, that document set out:

(a) Counsel's agreement that there would be no objections to "affidavit evidence (including documents in the two (2) tender books which have been provided to the Court. Counsel submits that submissions can be made as to the weight to be attributed to evidence".

(b) Counsel's view "that the ten (10) days set aside for the trial will not be needed and it may be possible to conclude the trial by 10.2.2025 and perhaps earlier".

(c) Counsel's agreement that it would "not be necessary to call [Ms U]", who had previously prepared Family Reports in the current and the earlier tranche of proceedings, and whose most recent report prepared 28 February 2024 was filed and annexed to an affidavit of the mother's solicitor filed 29 January 2026.

(d) A trial plan that proposed the court sit on Monday, Tuesday, Wednesday and Thursday of the first week of the scheduled trial listing, and on Tuesday of the second week of the trial listing. Notably, that proposed trial plan did not make any allowance for closing submissions and nor was any explanation given to for the proposed disjointed sitting days.

(e) A random reference was made in the document that "there may be some limited additional oral evidence sought to be led... [by] lay witnesses".

(f) A joint chronology was otherwise annexed.

1. Understandably, the provision of that document to chambers was not in compliance with any of the trial directions that had been previously made. Indeed so far as the joint chronology attached to that document, and given the lack of compliance with the timeframe for the filing of the same in accordance with Order 17 of the trial directions, r 1.33 of the Rules provides that the document is not before the court, unless leave is sought and given to the parties to rely upon the same (r 1.34 of the Rules); even if it be said that sending that document by email to my associate constituted "filing" such joint chronology, which clearly it does not.
2. In addition, the filing of that document, literally moments before the commencement of the trial is discourteous to the court, as it either assumes that the judge hearing the trial is waiting around for last minute filing or provision of material or worse yet, leaves no time for the court to consider the document prior to the commencement of the hearing.
3. While the court appreciates that counsel indicated work had been undertaken by each of them over the weekend in preparation for the final hearing, the legal representatives should also understand, and refrain from the habit that infects the profession, of sending communications to judge's chambers, often at the eleventh hour with the expectation that it will be read and considered by the presiding judicial officer prior to a hearing; something which is often impossible to be done given the heavy listings of the court. Judicial officers, like legal practitioners, at any given time have more than one case before them.
4. When the hearing commenced, the court indicated to the parties that the trial would not be proceeding on the basis of receiving all of the documents in the parties' respective tender books, which also presumably meant that the court was to receive all of the exhibits annexed to the mother's trial affidavit. The reason given for this during the hearing was that the court ought not be expected to "trawl through the documents" with the expectation that something relevant might be contained in them, and that it was not up to the judge to discern the relevance of any given document (Newett & Newett (No 9) (2023) FLC 94-133 at [141]-[142]).
5. In addition, the court raised with the parties that their respective failure to file any witness affidavits in accordance with the trial directions meant that the court assumed that other than the parties and the Family Report writer, no additional witnesses were to be called.
6. In making these comments to the parties, the court lamented the lack of compliance with the trial directions, and the difficulties this might occasion to the manner in which each party would be able to prosecute their case.
7. The proceedings were ultimately stood down to enable counsel to take instructions and consider their respective positions and any applications that were to be made.
8. When the proceedings resumed oral applications were made by each the mother and the father as earlier outlined.
9. On the mother's part, she sought leave that a subpoena issue for production of the file and notes of each of the children's treating professionals (Ms AU and Ms AV), and for the attendance of each treating professional to give evidence during the trial.
10. In making that oral application, the mother's counsel was unable to assist the court as to what evidence the mother was intending to adduce from each expert, nor as to the respective availability of each expert. The inability to assist the court with any of these issues was a fatal blow to the application.
11. The mother also sought to adjourn the commencement of the final hearing to the scheduled fourth day (5 February 2026) to enable the subpoenaed documents sought to be produced from the treating professionals to be considered prior to the commencement of the trial. In making that application, and with the court understanding from the Joint Memorandum of Counsel (Exhibit "J1") that the parties had arranged for the family report writer Ms AX to give evidence at the final hearing on Tuesday in the second week of the trial (day seven), the court enquired whether (a) enquiries had been made as to Ms AX's availability later than presently arranged (if the adjournment was granted), or (b) an assurance that if the final hearing commenced on Thursday of the first week (day four), all of the evidence would be concluded prior to Ms AX's scheduled attendance, including if granted, that of the additional witnesses. The mother's counsel was unable to give that assurance (with the father's counsel also unable to do so) and nor had any enquiries been made of Ms AX's availability. These matters were fatal to the adjournment application and reinforced why the application for leave to issue subpoena to the children's treating professionals ought be refused.
12. These lack of enquiries as to availability of the various proposed experts and that of Ms AY also gave cause for concern that if the applications were granted, the proceedings would not be concluded within the days that had been allocated and that there was a risk that the proceedings might be part-heard.
13. With all of these factors in mind and speaking strongly against the adjournment application, the court has had regard to the oft cited decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, which highlighted the following factors to be considered when determining amongst other things adjournment applications:

(a) There is "an irreparable element of unfair prejudice in unnecessarily delaying proceedings" (per French CJ at [5]);

(b) Inefficiencies in the use of court resources arising from the adjournment or vacation of trials upon not only the parties to the present proceedings but other court users (per French CJ at [5] and [30] and Gummow, Jayne, Crennan, Kiefel and Bell JJ at [112]‑[113]);

(c) The lack of a satisfactory explanation ought be taken into account (per French CJ at [5] and [30] and per Gummow, Jayne, Crennan, Kiefel and Bell JJ at [102]-[103]).

1. On the father's part, he too sought leave to issue a subpoena to Mr AB for production of notes and files and to give evidence at the trial. As with the mother's application, the father's counsel was unable to assist the court as to the availability of Mr AB. This was similarly a fatal blow to the application.
2. In addition to these matters, the court was also mindful that all of the experts the parties respectively wished to call at such a late stage, were all ones that had been foreshadowed by their respective counsel when the trial directions had been made six months earlier, and who on any view should have been arranged, and if necessary subpoenaed to give evidence, well before the first day of the trial. No explanation whatsoever was provided as to why either party had failed to comply with the trial directions in that regard. The failure of the parties to comply with the trial directions about these matters was what might best be described as a final "knockout blow" to their respective applications to call further witnesses.
3. The father otherwise sought leave to rely, again in breach of the trial directions (Order 5(d)), on two lay witnesses who had earlier filed an affidavit in these proceedings, namely:

(a) Ms AM who had earlier filed an affidavit on 23 November 2023; and

(b) Ms HH who had earlier filed an affidavit on 23 November 2023.

1. No explanation was proffered by the father as to why each of those witnesses had failed to depose an affidavit for trial in accordance with the trial directions.
2. In addition, when regard was had to each witness affidavit earlier filed, it became clear to the court that the evidence to be given by each proposed witness bore little, if any relevance to the issues in dispute in the proceedings, beyond their respective lay observations and opinions of the father, his love for the subject children, their observations of the father and the children during visits in October 2023 and whether they have concerns about the father's behaviour.
3. When regard is had to all of these matters, there was no sound basis for the court to grant leave to the father to rely on the earlier affidavits of each Ms AM and Ms HH.
4. Finally, when determining all of the parties' oral applications made at the commencement of the trial, the court has had regard to the "Overarching purpose" set out in s 95 of the Family Law Act 1975 (Cth) ("the Act") and r 1.04 of the Rules, which makes clear that proceedings ought be resolved fairly, according to law and as quickly, inexpensively and efficiently as possible. Moreover, this overarching purpose requires the parties and their legal representatives to conduct proceedings with that overarching purpose in mind.
5. When regard is had to the courts careful, considered and very clear case management directives provided in the trial directions, lamentably it cannot be said that the parties and/or their legal representatives have acted consistent with or with the overarching purpose in mind.
6. The impact on other court users when there is wasted court time also warrants comment. The family law jurisdiction is already pressurised. Any court time that could be, but is not allocated to judicial officers hearing disputes deprives another family from having their dispute resolved. Moreover, the subject matter of family law litigation is deeply personal, more often than not highly stressful and impacts parties, children and families in ways that cannot be underestimated or trivialised. Any delay to the resolution of any one piece of litigation prolongs the life disruption that litigation occasions to not only those parties but every other court user, and it ought be avoided. The loss of sitting time and the possibility of the court having to be part heard and/or find additional sitting time to hear and determine these proceedings, and the impact that would have on other litigants has weighed heavily in the refusal of the parties' competing applications.
7. For all of these reasons, the parties' respective oral applications were dismissed.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari.