Amirbeaggi (Trustee), in the matter Billiau (Bankrupt) v Billiau

1. The Principal Registrar of the Federal Circuit and Family Court of Australia (Division 1) is also requested to provide a copy of these reasons to Legal Aid New South Wales.

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

1. These reasons arise from a show cause hearing in relation to the conduct of the mother's former solicitor Ms B.
2. As these reasons elucidate, Ms B has failed to discharge her duties and obligations as a legal practitioner. It is unclear to the Court why this is so, because despite orders made requiring Ms B to attend court to have the opportunity to explain her conduct, Ms B did not attend the hearing specifically listed for this purpose. It is for these cumulative reasons that Ms B shall be referred to the Legal Profession Conduct Commissioner.

1. Between 4 December 2024 and 9 April 2025, Ms B was the solicitor on record for the respondent mother in parenting proceedings pending in the Federal Circuit and Family Court of Australia, Division 1. This is so because:

(a) On 4 December 2024, Ms B filed a Notice of Address for Service on behalf of the mother in the proceedings; and

(b) On 9 April 2025 new solicitors appearing for the mother filed a Notice of Address for Service on her behalf.

1. However, prior to Ms B filing the Notice of Address for Service she appeared electronically on behalf of the mother at a hearing on 20 November 2024 in the proceedings. As the notations to the orders made 20 November 2024 record, at that point in time Ms B had only recently been instructed to represent the mother pursuant to a grant of legal aid from Legal Aid New South Wales ("Legal Aid NSW").
2. The hearing on 20 November 2024 had been listed pursuant to orders made 22 October 2024 listing the proceedings to a First Day Hearing; being a hearing at which the Court would ordinarily list the proceedings for final hearing and make procedural orders to prepare for the final hearing. The orders of 22 October 2024 prescribed a range of procedural arrangements to ready the proceedings for the First Day Hearing on 20 November 2024, including but not limited to:

(a) Practitioners being in a position to address the Court as to the status of their client's grant of legal aid for trial (if in receipt of a grant of legal aid);

(b) The filing of written submissions 14 days prior to the First Day Hearing addressing whether the Court ought exercise discretion to apply the provision of s 102NA(1)(c)(iv) and/or s 69ZT(3) of the Family Law Act 1975 (Cth) ("the Act") to the final hearing in the proceedings;

(c) The filing of an Outline of Case seven days prior to the First Day Hearing identifying a summary of the issues in dispute, a minute of the specific orders sought by the party, a trial plan identifying witnesses to be called at the final hearing by that party, an estimated length of trial, and any subpoena which would be issued; and

(d) The filing of a Costs Notice in accordance with r 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") seven days prior to the First Day Hearing.

1. At the First Day Hearing on 20 November 2024, none of the procedural orders made 22 October 2024 had been complied with by the mother. The Court however accommodated the mother's lack of compliance in circumstances where Ms B submitted at the hearing that she had only very recently been instructed in the proceedings.
2. As a result of a range of matters that unfolded at the hearing on 20 November 2024, including giving Ms B an opportunity to familiarise herself with the proceedings, relevantly for present purposes, orders were made:

(a) Adjourning the First Day Hearing to 25 March 2025;

(b) Requiring Ms B to file and serve a Notice of Address for Service;

(c) Extending time for the mother to comply with the procedural orders for the filing of an Outline of Case and Costs Notice for the First Day Hearing to 7 March 2025; and

(d) Requiring the parties to confirm funding arrangements for trial at the adjourned First Day Hearing.

1. Ms B complied with her obligation to file and Serve a Notice of Address for Service on 4 December 2024. However irregularly, the Notice was unsigned by her, or any practitioner from her firm. There otherwise was no compliance by the mother with the orders made on 20 November 2024 extending time for the mother to file and serve an Outline of Case and Costs Notice to 7 March 2025.
2. On Friday 7 March 2025, the parties were advised in an email sent by my chambers at 10.50 am (Adelaide time), that the hearing on 25 March 2025 had been relisted to 11 March 2025 at 11:00 am.
3. The evening prior to the rescheduled First Day Hearing, on Monday 10 March 2025 at 9.59 pm, a communication was sent by Ms B to my Associate, copying in the Independent Children's Lawyer ("ICL") and the father's solicitor which read as follows:

Dear Associate to the Honourable Justice Kari,

I apologise for my late notice but it is unlikely that I will be available for tomorrow's hearing.

I have not been working effectively for the past week as my father fell unexpectantly very ill last week and I am currently spending most of my time at the hospital.

I cannot apologise enough for my current incapacity and would ask if possible if tomorrow's hearing could be moved to a date later in April.

I have advised [Ms Jennings] of my limited capacity at the moment and will continue to discuss possibilities of resolution with the parties.

I appreciate your understanding and apologise for any inconvenience this may have caused.

Kind regards

[Ms B]

1. Ultimately, there was no appearance by Ms B, nor counsel nor an agent instructed to appear in Ms B's stead, on behalf of the mother at the adjourned First Day Hearing on 11 March 2025. In addition, there was no appearance by the mother.
2. In the absence of any appearance by the mother, at the hearing on 11 March 2025 trial directions were made to ready the proceedings for a final hearing. Significantly for present purposes this was done in a vacuum of understanding the mother's case, the issues in dispute and the witnesses to be called by the mother at the final hearing, because the orders for the mother to file certain documents which had been extended to 7 March 2025 had still not been complied with.
3. In an attempt to deal with the ongoing default at the mother's end, and to better understand her case orders were made on 11 March 2025:

(a) Requiring the mother to file and serve any Amended Application particularising the final orders she now seeks, by 4:00 pm on 2 April 2025; and

(b) The proceedings were adjourned for further case management to 8 April 2025.

1. By the time of the hearing on 8 April 2025 the mother continued to be in default of the orders for the filing of material for the First Day Hearing.
2. Significantly, however, on 2 April 2025, the mother complied with the order made 11 March 2025 for the filing of an Amended Application for Final Orders. However, closer inspection of this document revealed that it had been prepared personally by the mother and not her legal representative Ms B who remained the solicitor on record for the mother.
3. At the hearing on 8 April 2025, there was again no appearance by a legal representative for the mother. The mother however, and to her credit, appeared in person by electronic means; an arrangement in place for all of the parties and their legal representatives for the procedural hearings in these proceedings.
4. During the course of the hearing on 8 April 2025 the mother variously confirmed that she had personally filed the Amended Application for Final Orders on 2 April 2025, and she informed the Court that she had been having difficulties with Ms B. The Court was additionally informed by the father's solicitor and the ICL that they had each been attempting to engage Ms B and urging her to return the grant of legal aid in order for the mother obtain alternate legal representation.
5. As a result of the information conveyed at the hearing on 8 April 2025 the following notations and orders were made:

UPON NOTING:

1. That the mother's solicitor [Ms B] having filed a Notice of Address for Service on 4 December 2024 has:

i. Failed to appear at the hearing on 11 March 2025;

ii. Failed to appear at the hearing this day;

1. Has not represented her client so as to comply with order 26 made on 11 March 2025 such that the mother has personally complied with the order for the filing of an Amended Application for Final Orders.

2. The Independent Children's Lawyer has indicated to the court today that she has been urging the mother's solicitor to return the Grant of Legal Aid so that the mother can be represented by alternate representation.

3. The court has indicated to the parties that the trial will be some time from September 2025 NOTING:

   1. The Independent Children's Lawyer has indicated to the court today that at the present moment [Dr C] has availability to give evidence between September and December 2025;
   2. The mother's proceedings in the Melbourne Registry are listed to be heard before Justice Hartnett for three days commencing 2 September 2025.

THE COURT ORDERS:

1. The proceedings be listed for a Show Cause hearing at 9.30am on 15 April 2025 with such hearing to be conducted by Webex and in relation to the same:
   1. [Ms B] is personally required to attend the adjourned hearing whether legally represented or not;
   2. Leave is given to [Ms B] to file an affidavit addressing her failure to provide any adequate representation to the mother and comply with orders of the court both as to her attendance at hearings on behalf of the mother and for the filing of documents;
   3. As to why a costs order ought not be made against her personally in relation to the costs thrown away of the father's solicitor and the Independent Children's Lawyer this day.
2. Forthwith the Independent Children's Lawyer to provide a copy of these orders to the Legal Aid New South Wales.

1. At the hearing on 15 April 2025, egregiously, and in the face of the orders made 8 April 2025 requiring Ms B's personal attendance at Court, there was no appearance by Ms B nor any person instructed on her behalf.
2. The Court is satisfied that Ms B was on notice of the hearing on 15 April 2025 for two reasons:

(a) The mother's new solicitor sent an email to the Court on 10 April 2025, identifying the adjourned hearing of 15 April 2025, with Ms B copied into this email; and

(b) The orders of 8 April 2025 were sent by chambers personally to Ms B and the other parties on 11 April 2025.

Failure to appear at court hearings and comply with orders for the filing of documents

1. As is clear from the summary of recent events, Ms B has now failed to appear at three hearings in these proceedings. The first two non-appearances occurred when Ms B ought have appeared or have instructed counsel to attend on her behalf for the mother. The third non-appearance occurred when Ms B was personally ordered to attend court and therefore required to attend court, specifically to deal with her recalcitrant conduct in the proceedings.
2. The South Australian Legal Practitioners Conduct Rules govern the conduct of legal practitioners in the South Australia ("the SALPC Rules").
3. On any view, by failing to appear at the three hearings identified, Ms B has principally breached r 3 which provides:
   1. PARAMOUNT DUTY TO THE COURT AND THE ADMINISTRATION OF JUSTICE

3.1 A legal practitioner's duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.

1. In addition, by failing to appear at hearings for her client, and by failing to comply with orders for the filing of documents Ms B also appears to be in breach of r 4 and r 5 which provide:

4. OTHER FUNDAMENTAL ETHICAL DUTIES

4.1 A legal practitioner must also:

4.1.1 act in the best interests of a client in any matter in which the practitioner represents the client;

4.1.2 be honest and courteous in all dealings in the course of legal practice;

4.1.3 deliver legal services competently, diligently and as promptly as reasonably possible;

4.1.4 avoid any compromise to their integrity and professional independence; and

4.1.5 comply with these Rules and the law.

1. STANDARD OF CONDUCT - DISHONEST OR DISREPUTABLE CONDUCT

5.1 A legal practitioner must not engage in conduct, in the course of legal practice or otherwise, which:

5.1.1 demonstrates that the practitioner is not a fit and proper person to practise law; or

5.1.2 is likely, to a material degree to:

5.1.2.1 be prejudicial to, or diminish the public confidence in, the administration of justice; or

5.1.2.2 bring the profession into disrepute.

1. In addition, by failing to complete tasks required of her as the solicitor on record for the mother in the proceedings, and where the mother was beholden to Ms B pursuant to the grant of legal aid in her favour, Ms B additionally appears to be in breach of r 13, which provides:

13. COMPLETION OR TERMINATION OF ENGAGEMENT

13.1 A legal practitioner with designated responsibility for a client's matter must ensure completion of the legal services for that matter UNLESS:

13.1.1 the client has otherwise agreed;

13.1.2 the law practice is discharged from the engagement by the client;

13.1.3 the law practice terminates the engagement for just cause and on reasonable notice; or

13.1.4 the engagement comes to an end by operation of law.

1. A number of comments ought be made about the communication sent by Ms B to chambers on 10 March 2025.
2. Firstly, that a communication was sent to chambers copying in the other parties at almost 10:00 pm in the evening is entirely inappropriate; particularly as r 2.41 of the Rules provides that any document "served electronically" is not taken to have been served until the "next business day after the document was sent". In this instance that would mean that the email was not actually served until the opening of the Court on 11 March 2025, being the day of the hearing.
3. Importantly, the custom of sending emails and electronically filing and serving documents at all hours of the early morning and/or night is one that ought be reconsidered by the profession more broadly; but particularly in this jurisdiction where it seems to have become a habit. This is because the legal profession, and importantly the Court, other than in circumstances of genuine urgency is not a 24/7 service industry.
4. Moreover, the sending of communications electronically outside business hours, is disruptive, discourteous and inconvenient, not least of which because it assumes that the recipient will receive the email when it is sent, and in that regard in the present circumstances the communication sent by Ms B assumed that:

(a) in the case of the other legal practitioners in the proceedings, that they would have the opportunity to consider it, advise, take instructions, and respond in this instance in a time frame of at best, no more than two working hours prior to the hearing; and

(b) in the case of the Court, that there would be an opportunity for the judge to consider and deal with the email communication prior to Court commitments commencing for the day.

1. Secondly, there should have been no assumption on the part of Ms B, whatsoever (and particularly in light of the timing of the communication), that arising from the communication there would either have been:

(a) An exemption from a requirement that she as the legal practitioner on record, or counsel briefed in her stead, would be excused from attending the adjourned hearing for the mother; and/or

(b) A further adjournment of the First Day Hearing would be administratively granted "to a date later in April".

1. Implicit, however, in the tenor of the communication sent by Ms B, and her failure to appear or instruct counsel to appear, was an assumption that that Court would accede to her request to be excused and/or an adjournment granted.
2. It is not known what, if any, warning or notice the mother was given about Ms B's circumstances and her intention not to appear at the hearing. However, the Court would have to at least be open to the possibility that the mother was unawares of the communication and Ms B's intention.
3. Whilst the Court is generally sympathetic to the personal circumstances of legal practitioners that interfere and at times prevent compliance with professional obligations and duties both to the Court and to their clients, here, where an accommodation had been made for all of the parties to appear electronically, there is no explanation afforded as to why it was that Ms B could not do so at the hearing on 11 March 2025.
4. Moreover, whilst at best the communication of 10 March 2025 might provide some explanation as to Ms B's non-attendance on 11 March 2025, no such communication was sent in relation to Ms B's non-attendance at the two subsequent hearings.
5. Thirdly and of equal concern, the email communication reveals a distinct and inappropriate level of informality with the Court.
6. Pursuant to r 18.1 of the SALPC Rules, legal practitioners have duty of formality before the court in the following terms:

18. FORMALITY BEFORE THE COURT

18.1 A legal practitioner must not, in the presence of any of the parties or practitioners, deal with a court on terms of informal personal familiarity which may reasonably give the appearance that the practitioner has special favour with the court.

1. As discussed by Judge Given in Amirbeaggi (Trustee), in the matter Billiau (Bankrupt) v Billiau [2023] FedCFamC2G 949:
   1. Correspondence to Chambers which will necessarily be read by the Judge is a communication before the Court. As such, an email sent to Chambers becomes a communication with the Court itself.
   2. There is arguably nothing so informal, or possibly arrogant, as to approach a Court with orders which have been agreed amongst the parties and simply presume, or in the instant case direct, that they will be made (or to use the parlance of days' past "rubber-stamped": see Balakrishnan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 138 at [36]). The concluding use of "Kind regards" (see [3] above) or similar expressions, in correspondence with a Court, is also not appropriate, and falls foul of the obligation to avoid informality.

...

1. The underlying origin/s of this spate of informal and presumptuous correspondence is unknown, although it does seem heightened since the COVID-19 pandemic restrictions which forced a number of Courts to conduct hearings using online technologies. That same circumstance has deprived a generation of young lawyers from exposure to proper Court etiquette. Lest there be any doubt, parties and practitioners should not interpret the use by Courts of a medium which can also be used for meetings and entertainment, as somehow informalising the solemnity of Court proceedings.
2. Similarly, it would be a serious mistake to confuse the ease of use provided by email as giving rise to a correlative reduction in propriety, professionalism and formality.
3. The advent of the use of email between legal practitioners and Courts was, inter alia, to enable parties to approach Chambers swiftly for case management purposes. Expedience and formality are not mutually exclusive.

1. Her Honour's comments are endorsed given the events that have taken place in these proceedings.
2. Importantly, this Court has issued a guide to communicating with chambers which is available on the Court's website (see https://www.fcfcoa.gov.au/fl/attending-court/communicating-chambers).
3. That guide provides:

You are not permitted to contact a Judge or Registrar directly, however, legal representatives and parties may communicate with the chambers of the presiding judicial officer in limited circumstances. You should only email chambers via the Associate/s to a Judge or Senior Judicial Registrar, or the Case Manager to a Judicial Registrar or Deputy Registrar, in the following situations:

• if you and the other party reach agreement and draft consent orders at any point during your case. You may email the chambers of the Judge or Registrar to whom your case is docketed, to request that the proposed consent orders be made in chambers, without the need for another Court event. All parties to the proceedings must be copied into this email,

• if you wish to seek an adjournment of an upcoming Court date. First you must raise the issue with the other party/ies, you may then email any joint request for an adjournment to the chambers of the Judge or Registrar for their consideration. All parties to the proceedings must be copied into this email (if there is no consent about an adjournment, see point 5 below), or

• if you require procedural information about your case that cannot be found on the Commonwealth Courts Portal, such as dial in details for an electronic court event. All parties to the proceedings must be copied into this email.

It is important to remember that Court staff (including Associates and Case Managers) cannot provide legal advice. They can only provide you with procedural information or refer you to others who may be able to assist.

What to consider before contacting chambers

There are a number of things you need to keep in mind when contacting the chambers of a judicial officer:

1. If you are a party in a proceeding, and you are legally represented, you should not contact chambers directly. Your legal representative should contact chambers on your behalf.

2. All communication written to a Judge or Registrar must occur through their Chambers staff.

3. Any necessary communication with the Court should be done with the consent of all the parties, in writing (preferably email) and with all parties copied into the communication. This includes an Independent Children's Lawyer (if appointed).

4. Before contacting chambers, you and the other parties (or their legal representative, if they are legally represented) should agree that it is appropriate to contact chambers because the issue cannot be resolved without the Judge or Registrar. For this purpose, you should always contact the other parties in your case, and any legal representative/s (if represented), before contacting the Court, explaining the reasons for the communication.

5. Even if the other party's consent to the communication has not been received, any email to chambers should include all other parties, or their legal representative/s (if represented). Chambers staff may not respond to your email unless all parties are copied into the correspondence. You should also be aware that a copy of your correspondence could be provided to the other legal representative/s, and parties.

6. Unless exceptional circumstances exist, parties and legal representatives should only communicate with chambers staff by email.

7. All communication with chambers should be courteous and respectful. The Court will not respond to correspondence containing abusive or offensive language.

These guidelines are not intended to apply to communications with a registrar acting in an administrative capacity (for example, in their role as a Duty Registrar) or in the context of a dispute resolution event.

(Emphasis added)

1. In addition to this guide, which is publicly available on the Court's website, a link to this guide is provided in an automatically generated response to every communication received by my chambers. That automatically generated response relevantly commences as follows:

Thank you for your email. This is an automatically generated reply to advise that your email will be answered, as soon as practicable, if appropriate.

Communicating With Chambers

All correspondence to Chambers must be copied to the other parties in your matter. Correspondence that is not copied to all parties will not be considered.

It is not appropriate for parties or legal practitioners to contact Chambers except in the circumstances outlined in the guide to Communicating with Chambers: https://www.fcfcoa.gov.au/communicating-chambers.

If the matter you are emailing chambers about is listed within the next 24 hours, there may not be sufficient time for requests to be considered. If you do not receive a response, the request has not been granted.

Court staff cannot provide legal advice.

1. In all of these circumstances, there could have been no misapprehension by Ms B that her request to be excused from attending the hearing on 11 March 2025 (which is the best gloss that might be given to the email to chambers on 10 March 2025), nor her request for an adjournment had been granted.

1. It is for all of these reasons that orders shall be made directing the Principal Registrar of the Court to refer Ms B to the appropriate professional regulatory body. In doing so a copy of these reasons together with the documents and orders referred to in these reasons shall also be provided.
2. In addition, and given Ms B appeared for the mother in these proceedings pursuant to a grant of legal aid, these reasons shall also be referred to Legal Aid NSW.
3. I am otherwise conscious that an oral application for costs thrown away was made by the father, personally against Ms B regarding the events discussed in these reasons. That application has been listed for separate hearing on 20 May 2025, and again Ms B has been afforded the opportunity to be heard if she so wishes.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari.