Auteberry & Auteberry [2025] FedCFamC1F 348 (30 May 2025)

(a) These reasons for judgment;

(b) The transcript of the hearings on 8 and 9 April 2025;

(c) The Application in a Proceeding and Affidavit filed by the father on 2 April 2025; and

(d) The Affidavit of Ms B filed 9 April 2025.

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

1. These reasons arise from a series of events across the first three days of what ought have been the first three days of an eight day final hearing in the parenting proceedings of this matter.
2. These reasons relate to two distinct issues as follows:

(a) Firstly, issues relating to the conduct of the father's solicitor and the father's "counsel of choice"; and

(b) Secondly, an Application in a Proceeding filed 2 April 2025, being the week prior to the scheduled commencement of the final hearing, in which the father sought to restrain the mother's solicitors from acting for her - albeit not specifically crafted that way.

1. The Application in a Proceeding was entirely without merit and was dismissed with reasons to publish separately and contemporaneously with the publication of the reasons in the substantive parenting proceedings. However, the final hearing in the parenting proceedings was ultimately adjourned as a result of the events that occurred across the first three days of what ought have been the final hearing. Accordingly, the reasons for dismissing the application to restrain the mother's solicitors from acting for her are addressed in these reasons.
2. The professional conduct issues relating to the father's legal representatives are also traversed in these reasons. That is so for two reasons:

(a) Firstly, because the Court considers that orders ought be made referring the conduct of the father's solicitor to the legal practitioners' regulatory body.

(b) Secondly, because in addition, and as an adjunct to both issues, the Court has timetabled costs applications made on behalf of the mother, and possibly the Independent Children's Lawyer to a hearing on 10 June 2025. Those costs applications are directed not only to the father, but additionally the father's solicitor, Mr Jelbert, in relation to the mother's costs thrown away as a result of all of the events which transpired.

1. The significant time spent by the Court in traversing these issues over three days, instead of hearing and determining the parenting proceedings is undoubtedly a travesty. The cost implications of that exercise shall be dealt with separately, however the Court understands from submission heard thus far in that regard that those costs are not insignificant. Importantly, however, the loss of court time to these parties and more broadly other litigants who have been unable to have their case determined in what is already a pressurised jurisdiction with long delays to final hearings, cannot be underestimated nor pass without comment. Every occasion where court time is wasted in this jurisdiction results in a family (spouses, parents, carers and children) being unable to move out from under the storm cloud that litigation creates, with all its attendant stresses, stressors, distress and acrimony.

1. It is not germane to the present issues to traverse in any detail the parenting proceedings that are before the Court, other than to record the following procedural orders and arrangements:

(a) On 26 September 2024 orders were made listing the parenting proceedings for a final hearing commencing on 8 April 2025 with a time estimate of eight days. At the same time trial directions were made to ready the proceedings for the final hearing.

(b) A hearing took place in the parenting proceedings before a Senior Judicial Registrar on 11 October 2024 at which a suite of parenting orders were made.

(c) Whilst a number of additional orders were made in the parenting proceedings between 26 September 2024 and the first day of the trial on 8 April 2025, save as to the hearing on 11 October 2024, the balance of orders were made in chambers of the Court's own motion and/or at the request of the parties.

(d) Of significance pursuant to the trial directions made 26 September 2024:

(i) The applicant mother was required to file the material she relied upon for trial by 12 February 2025, with this date later extended to 19 February 2025. She complied with this obligation.

(ii) The respondent father was required to file the material he relied upon for trial by 26 February 2025, with this date later extended to 5 March 2025 and then further extended to 11 March 2025. He complied with this obligation.

1. So far as the hearing on 26 September 2025 is concerned, the orders record the appearances to have been Ms Miller as counsel for the mother, the father's solicitor Mr Jelbert, and Mr Tredrea as counsel for the Independent Children's Lawyer ("ICL").
2. The hearing before the Senior Judicial Registrar on 11 October 2024 records the same appearances for the mother and the ICL, and that Ms B appeared as counsel for the father.
3. In the lead up to the commencement of the trial on 8 April 2025 two Applications in a Proceeding were filed by the father, which inform the issues discussed in these reasons:

(a) The first was filed on 1 April 2025; and

(b) The second was filed the following day, on 2 April 2025.

1. The Application in a Proceeding filed 1 April 2025, whist not crafted in this fashion, was effectively an application to restrain the firm of solicitors representing the mother from acting for her. Of significance the father additionally sought that the trial be "vacated" and be given a "compliance and readiness hearing" date not before 1 July 2025 and for the trial material filed by the mother to be "uplifted from the Court file".
2. The affidavit filed by the father in support of that application identified that the father sought to restrain the firm of solicitors in circumstances where he alleged that the mother and one of the solicitors at the firm have a friendship.
3. By the Application in a Proceeding filed 2 April 2025 the father also sought orders vacating the trial.
4. In support of the second application, the father swore an affidavit in which he in essence identified that counsel briefed to appear in the trial for him (Ms B) had returned the brief in the week prior to the commencement of the trial.
5. Both of the applications were sealed with a return date of 8 April 2025, being the first day of the final hearing.

1. On the first day of trial (8 April 2025), the father was present and represented by counsel, Mr C. The father's solicitor Mr Jelbert was not present.
2. Mr Jelbert's absence from the hearing was significant in light of the obligation on "lawyers" to attend "each court event" as provided for in Rule 15.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), and as also set out in the Central Practice Direction: Family Law Case Management of the Court which provides:

Requirement to attend court in person

5.6 Other than where a consent position is being presented, unless a party has been exempted from the obligation to physically attend, the parties, and if represented, their lawyers, must attend every court event in person or by any electronic means directed by the presiding judicial officer unless excused by the Court.

(Emphasis added)

1. Mr Jelbert's absence was even more significant in light of the events that unfolded (as discussed later in these reasons), and taking into account that counsel takes instruction from their instructing solicitor, and not the client directly.
2. The separate and distinct roles of instructing solicitor and counsel requires further mention. In all litigation, a great deal of work is undertaken by the instructing solicitor to prepare proceedings for a final hearing, including but not limited to the drafting of the filed evidence and material relied upon, the inspection and collation of documents produced pursuant to subpoena and the collation of the discovered documents. In family law litigation, and particularly at the point of a final hearing, the importance of the attendance at court by the instructing solicitor is heightened because often the solicitor acts as a filter through which a client's emotions, distress and lack of clarity passes to enable succinct and relevant instructions to be given by the instructing solicitor to counsel. Additionally, the instructing solicitor's attendance assists in the orderly running of a final hearing by assisting to minimise the loss of court time. This is because the instructing solicitor is available to attend to the multitude of issues that arise during a final hearing, including but not limited to organising witnesses, ensuring documents are available to be tendered and otherwise attending to any task required by counsel, to ensure that counsel's focus is on the hearing and the presentation of the client's case in court with as little interruption as possible.
3. The Court understands that the father's legal representation in the proceedings and specifically for the final hearing is pursuant to a grant of legal aid (Exhibit "F1").
4. Pursuant to the costs notice filed by the mother on 4 April 2025, the Court is aware that the mother has privately funded her legal representation. As at 4 April 2025 the legal costs incurred by the mother total $384,300, and her anticipated costs for trial (including counsel fees) total between $91,575 and $95,150. Whilst it is acknowledged that financial proceedings are also before the Court, the focus of the proceedings to date have been the parenting proceedings, with a decision made by the Court on 26 September 2024 to bifurcate determination of the parenting and the financial proceedings due to the lack of preparation of the financial proceedings at the father's end.
5. At the commencement of the hearing on Tuesday 8 April 2025:

(a) Mr C indicated that he was instructed to press both applications that had been filed by the father in the lead up to the trial, indicating in the process that he was not counsel "of choice" for the father. In response to a question from the bench, Mr C submitted that if the father's applications to adjourn the trial were unsuccessful, then he was retained to appear in the trial and would be ready to proceed.

(b) The mother's counsel made an oral application to adjourn the commencement of the trial for a period of approximately two hours to enable her and the mother to consider documents discovered late by the father on Friday 4 April 2025. That application was granted.

(c) The mother's counsel and counsel for the ICL otherwise advised the Court that the interlocutory applications that had been filed by the father would be opposed; with the mother's counsel foreshadowing an application for costs thrown away if the applications were dismissed by the Court.

(d) In the course of the hearing, concerns were raised by the Court as to an apprehension on the Court's part that the father's preferred counsel appeared to have returned the brief to accept another brief a week prior to the trial. As a result, the Court directed the father's counsel appearing that day (Mr C) to arrange for counsel previously retained by the father (Ms B) to appear when the hearing resumed at 12.45 pm to allow her to be heard regarding her conduct and the concerns of the Court.

1. When the hearing resumed at 12.45 pm on 8 April 2025:

(a) Mr C advised the Court that his instructions had been terminated by the father and he sought leave to withdraw. Such leave was given.

(b) Thereafter there was no appearance on behalf of the father by any legal representative, despite Mr Jelbert being the solicitor on record for the father. Ultimately the father was called to the bar table to address the Court directly. During the course of Mr C's and then the father's submissions the Court understood that Mr Jelbert was interstate but present during a conference by telephone earlier in the day when the father had terminated Mr C's instructions. The father asked the court to adjourn the proceedings until the following day at 10.00 am, when Mr Jelbert would be present and could "front" the Court.

(c) Ms B appeared, together with her own counsel. During the course of that appearance it was apparent to the Court that Ms B was significantly distressed. It also became clear to the Court from submissions that Ms B was not aware of the Application in a Proceeding that had been filed on 2 April 2025 by the father, nor the basis for it, and in particular she did not know that:

(i) She was the father's counsel of choice;

(ii) An adjournment of the trial had been sought so as to retain her as counsel; or that

(iii) Correspondence she had sent to her instructor Mr Jelbert on 1 April 2025 had been annexed to the affidavit filed in support of the application.

1. In all of these circumstances, the commencement of the trial was adjourned to 10.00 am the following day (9 April 2025), and the proceedings were listed for a show cause hearing in relation to the conduct of Mr Jelbert and Ms B at 4.15 pm, also on 9 April 2025.
2. When the hearing resumed on the following day on 9 April 2025, the proceedings took an even more concerning turn of events. This is because prior to making my way onto the bench to commence the hearing, I became aware from another judge of the Court that a part-heard trial was unable to resume that morning because counsel in the part-heard trial was appearing in these proceedings. Accordingly, when the hearing in these proceedings resumed, I made an enquiry of counsel to identify who it was that was in the part-heard trial scheduled to resume before another judge that day. Mr Jelbert identified himself.
3. The events that then unfolded are best described as bizarre, with Mr Jelbert prevaricating around making an oral application that he be released from appearing for the father in these proceedings. In the course of the issue being traversed with him, Mr Jelbert suggested that if he was to be released from representing the father in these proceedings (to appear in the part-heard trial), he would cease acting for the father and that the father would be self-represented in these proceedings.
4. In dancing around making any application, the Court was also informed by Mr Jelbert that:

(a) The father wished to press both applications filed by the father in the lead up to the trial; and

(b) He had not been excused from appearing in the part-heard trial.

1. In addition, and troublingly, Mr Jelbert also made submissions that stood in stark contrast to those made by Mr C the previous day; accepting that some of the events described by Mr Jelbert were the subject of privileged communications between the father and his legal representatives which had not been disclosed by Mr C during those hearings. The submissions made by Mr Jelbert included that he had fallen into "damage control" when Ms B had returned the brief and to that end:

(a) Mr C had only been briefed on behalf of the father to argue the two interlocutory applications and not to appear in the trial, as against Mr C having told the Court that he was ready to proceed with the trial if the two separate adjournment applications were refused.

(b) Mr C had "refused to take instructions" from the father, and that it was Mr C who had determined he would not represent the father, and not that the father had terminated his instructions; something the father himself had also confirmed he had done during the hearing on 8 April 2025.

(c) Mr C had "limited opportunity" to prepare for the trial and there was an "issue" as to whether Mr C was in a "position to properly represent" the father, which was not a matter raised by Mr C and did not align with Mr C's submissions that he was ready to proceed with the trial if the father's applications were refused.

1. What is confounding about those submission when considered collectively is that if the Court were to accept that Mr C had only been briefed to argue the interlocutory applications to adjourn the trial, and if those applications had been unsuccessfully argued on the first day of trial, then presumably Mr C would have thereafter withdrawn from the hearing, and the father would have been left without legal representation whatsoever, despite Mr Jelbert being the solicitor on record for him, as Mr Jelbert was not present at Court; being the very circumstance that presented when Mr C withdraw because his instructions were terminated by the father.
2. Ultimately however, and in an effort to salvage the trial being heard within the allocated dates, the proceedings were adjourned to 4.15 pm that same day to enable Mr Jelbert to explore settlement negotiations in the part-heard trial, and on the basis that the proceedings were returning at that time in any event to hear from Ms B.
3. When the hearing resumed at 4.15 pm on 9 April 2025 the Court was informed that the part-heard trial had resolved, thus freeing up Mr Jelbert to appear in these proceedings.
4. Thereafter, Mr Jelbert informed the Court that the father no longer pressed the application to adjourn the trial filed on 2 April 2025 (relating to counsel of choice). Accordingly, an order was made on 9 April 2025 dismissing that application.
5. Mr Jelbert additionally informed the Court that the father wished to press the application filed on 1 April 2025. That application was ultimately heard and orders made dismissing it on 10 April 2025, with reasons to publish separately.

1. Whilst the Application in a Proceeding filed 2 April 2025 was one that was ultimately abandoned by the father, the issues relating to that application were ones that were traversed by the Court first in time and shall therefore be dealt with first in these reasons. The issue shall also be dealt with because it infected the events that took place across the three hearing days.
2. By this Application in a Proceeding, the father sought the following orders:
   1. That the trial in this matter scheduled to commence Tuesday 08 April 2025 be vacated.
   2. The trial be relisted on a date to be notified by chambers.
3. In support of the application, the father filed a brief affidavit, the contents of which is repeated in full hereunder:
   1. I am the primary respondent in these proceedings and make this affidavit in support of my application in a proceeding filed contemporaneously herewith.
   2. I know from being informed by my solicitor that [Ms B] is now not available to act as my counsel at the trial listed to start next Tuesday 08 April 2025. Now produced to me, annexed hereto and marked [MSA]-1 is a copy of correspondence from [Ms B] and regarding the same.
   3. I know from being informed by my solicitor that initially and early February 2025, [Ms B] was available to represent me, was later conflicted on the first day because of another case she is involved in, and for a personal reason is unavailable on the last day of the trial.
   4. I know the facts deposed to herein are true and correct of my own knowledge, except where I rely on the knowledge of others, and in those instances, I verily believe them to be true and correct.
4. The communication annexed to the affidavit was an email sent by Ms B to the father's solicitor Mr Jelbert at 4.20 pm on 1 April 2025 together with another email sent by Ms B to Mr Jelbert at 4.54 pm. Those communications are also set out hereunder in full:

...

Sent: Tuesday, 1 April 2025 4:20 PM

...

Dear Scott,

I confirm that last Wednesday morning at Court we held a discussion about the difficulty I faced in being able to continue to accept the brief in this matter, where another matter I am briefed is to be heard on 7 and 8 April, effectively backing onto the first day of this trial. I had advised that I was of the view that I would not be able to start this trial and in effect, would need to return the brief. At that time, you had suggested that the trial plan could be adjusted to remove a day of hearing, so that the trial may be able to start a day later. I had indicated that if that were going to be the case, a formal request had to be sent to the other party, and the proposal would then need to be acceptable to the Court. I assume this did not occur, as I was not cc'd into any communication about this.

As you are aware, I spoke with Ms Miller [Mother's Counsel] on Wednesday of last week and had made her aware of my difficulty with the first day of this trial, and had suggested to her that we may be able to discuss the proposed trial plan to see if the matter could be condensed into fewer days. I had indicated to Ms Miller that communications would be sent between the solicitors in relation to this. Ms Miller indicated that she was meeting with her client this week. She has today confirmed that the matter will proceed to trial. I note that I informed you of same, shortly after that conversation.

Yesterday I spoke with you about the matter and confirmed that apart from the issues on day 1, there was a further complication in that on the 11 April, I now have an immoveable personal commitment. As a result of these ongoing issues with my availability to be involved in the matter, I confirmed that I would need to return the brief.

Today we held a further discussion, and I confirmed that I would not be able to be involved in the matter, and that the brief would be available for collection from chambers.

During our discussion today, you indicated that you would be in Sydney next week, and would need to find counsel to appear at the first day, given that there is now a recusal application for the Mother's legal representatives that would need to be heard on that day. I advise that I have attempted to contact [Mr C], but he has not yet responded to me. I have also contacted [Mr D], he too has not yet responded to me. I am aware that [Mr E] is not available and neither is [Mr F]. You indicated that you would make some calls, I leave that with you.

I confirm that the brief is now ready for your immediate collection.

[Ms B]

BARRISTER

....

Sent: Tuesday, 1 April 2025 4:54 PM

...

Dear Scott,

Further to my email only moments ago, I have heard from [Mr C], he has confirmed that he is available to act as Counsel for your client.

I had a brief discussion with [Mr C] about the parameters of the case and I indicated to him that I would let you know to contact him to formally book him for the trial.

I attempted to telephone you this afternoon to advise of same, but was not able to reach you.

I will leave the matter with you to discuss with [Mr C] and confirm that the brief is ready for collection from my chambers.

[Ms B]

BARRISTER

1. The concerns to the Court arising from the application and the affidavit filed in support were:

(a) It appeared that Ms B had returned the brief to appear at the final hearing in these proceedings in part to appear in a trial before another judicial officer;

(b) There was no explanation given as to why counsel returning the brief grounded the application to adjourn the trial, for example, nothing was deposed as to efforts made to brief alternate counsel or when counsel might be available which might inform the question of any prejudice to the father and/or the mother;

(c) There appeared to be an assumption on the part of the father and/or his solicitor that there was a proper basis for the adjournment application (absent any cogent reasons), together with an assumption that the application would be granted; and

(d) There appeared to be no acknowledgement of any prejudice to the mother and the ICL arising from any adjournment of the trial, including but not limited to wasted costs and delays to any relisting of the final hearing.

1. In relation to the concerns regarding the conduct of Mr Jelbert and Ms B, an order was made on 8 April 2025 giving each of them leave to file any document they wished to rely upon. Ms B took up this opportunity, whereas Mr Jelbert did not.
2. The affidavit filed by Ms B on 9 April 2025, variously set out:

(a) She was not aware of the Application in a Proceeding that had been filed by the father on 2 April 2025, nor the affidavit in support, prior to being given a copy by the Court at the conclusion of the hearing on 8 April 2025 (at paragraphs 4-5).

(b) Mr Jelbert had not discussed with her any intention to file any such application (at paragraph 6).

(c) She had been briefed to appear at the final hearing in the parenting proceedings "before the end of 2024" (at paragraph 9).

(d) Some time after 22 February 2025, she was instructed to appear in a part-heard trial (identified as the "R brief") before another judicial officer, the trial having commenced in April 2024 with "replacement counsel" needed (at paragraph 10).

(e) On 17 March 2025 her chambers received the trial brief for the final hearing in the parenting proceedings in these proceedings, without any cover note or letter of instruction, nor a copy of any court orders made in the proceedings (at paragraphs 11-12).

(f) On 19 March 2025 she was instructed to appear in two appeals in relation to the R Brief (at paragraph 13).

(g) She appeared at a directions hearing for the R Brief part-heard trial on 26 March 2025, with the part-heard trial listed to conclude on 7 and 8 April 2025. Ms B attempted to negotiate another date for the part-heard trial to resume (given her instructions to appear at the final hearing in these proceedings), but was unsuccessful in doing so (at paragraph 15).

(h) Immediately after the hearing on 26 March 2025, she telephoned Mr Jelbert to advise him that she had been instructed in the part-heard trial that clashed with the final hearing in these proceedings (at paragraph 16).

(i) Thereafter it appears that she advised Mr Jelbert to make enquiries of opposing counsel in these proceedings as to whether the final hearing in these proceedings could be delayed and/or the number of hearing days allocated reduced so that she could appear in both the R Brief and the final hearing in these proceedings. She herself also spoke with opposing counsel on 26 March 2025 (at paragraphs 16-17).

(j) In the evening of 27 March 2025 she became aware of a personal commitment on 11 April 2025, being the fourth day of the final hearing in these proceedings (at paragraph 19).

(k) She attempted to arrange an alternate to undertake her personal commitment across 28 and 29 March 2025 without success, together with attempts to move the personal commitment, again without success (at paragraphs 20-21).

(l) On 31 March 2025 she spoke with Mr Jelbert and advised that as a result of her personal commitment she would be returning the brief in these proceedings (at paragraph 22).

(m) She twice spoke again with Mr Jelbert on 1 April 2025 wherein she confirmed she would be returning the brief, and Mr Jelbert advised her that he would be in Sydney for the final hearing and unable to attend (at paragraph 23). Following these phone calls, she sent Mr Jelbert the emails set out earlier in these reasons.

(n) Following her telephone call with Mr Jelbert she also made further enquiries of alternate counsel and communicated with Mr C, who indicated that he was prepared to accept the brief to appear in these proceedings, which she thereafter communicated to Mr Jelbert (at paragraphs 25-27).

(o) Across 2-4 April 2025 both she and her chambers clerk made numerous unsuccessful efforts to liaise with Mr Jelbert and/or his office to arrange for collection of the trial brief in these proceedings, with the brief ultimately being collected around lunch time on 4 April 2025 (at paragraphs 27-35).

(a) The affidavit filed in support of the Application in a Proceeding on 2 April 2025 does not provide a "complete history" of what had taken place resulting in her returning the brief to appear at the final hearing in these proceedings.

(b) At no time did Mr Jelbert discuss with her that an application would be filed seeking an adjournment grounded upon her availability, nor did she give advice that such application be filed.

(c) The Application in a Proceeding and affidavit in support filed 2 April 2025 were filed at a time when Mr Jelbert had been advised by her that Mr C was available to appear at the final hearing in these proceedings, following significant enquiries she had made to try and find alternate counsel.

(d) Given what has transpired in relation to the Application in a Proceeding filed 2 April 2025, she is no longer prepared to accept the brief to appear in these proceedings.

1. Of some import for present purposes, in her affidavit Ms B deposed (at paragraph 18):

I was aware of my obligations under the 'cab rank' rule and was aware that the length of time a matter had been booked, was not a factor as to whether I was to retain that brief, when there was urgency in the completion of a matter that was already part heard.

1. There is much to be said regarding the series of events which ultimately led to the Application in a Proceeding filed 2 April 2025 and the events that have thereafter flowed from the same.
2. In the first instance it is observed, and the profession ought be reminded, that it is the court and not the legal representatives that dictate the sitting and listing times of the court. It was therefore presumptuous in the extreme for Ms B to have considered it appropriate to suggest that the final hearing in these proceedings could be delayed by a day to enable her to appear in the R Brief.
3. The South Australian Legal Practitioners Conduct Rules 2022 (SA) ("the Conduct Rules") govern the conduct of legal practitioners (lawyers and barristers) who practice in South Australia. Part A of the Conduct Rules applies to all lawyers practicing in South Australia (Part A, Rule 1), whilst Part B of the Conduct Rules applies specifically to barristers (Part B, Rule 6).
4. Relevantly in this instance, the Conduct Rules provide (at Part A, Rule 3):
   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. Assuming that the Court will rearrange its listings to suit the availability and/or convenience of counsel, particularly here, where the final hearing in these proceedings had been listed six months earlier, appears to ignore/misconceive the obligations imposed by this rule.
2. Moreover, there should be no assumption on the part of the profession that counsel of choice will as a matter of right, be accommodated by the court (see Grimwade v Meagher and Others [1995] VicRp 28; [1995] 1 VR 446 (22 December 1994) at 450). Often and where possible the court will attempt to facilitate counsel's availability, but doing so does not take priority over the competing pressures of the court managing its resources and case load to ensure timely access to justice by all litigants appearing before the court (see for example Haset Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625 at 629 and 636 and Aon Risk Services Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175).

1. The "cab-rank rule" identified by Ms B in her affidavit can be found in the Conduct Rules at Part B, Rule 17 (as applying to barristers), and provides as follows:

A barrister must accept a brief from a solicitor to appear before a court in a field in which the barrister practises or professes to practise if:

(a) the brief is within the barrister's capacity, skill and experience;

(b) the barrister would be available to work as a barrister when the brief would require the barrister to appear or to prepare, and the barrister is not already committed to other professional or personal engagements which may, as a real possibility, prevent the barrister from being able to advance a client's interests to the best of the barrister's skill and diligence;

(c) the fee offered on the brief is acceptable to the barrister; and

(d) the barrister is not obliged or permitted to refuse the brief under Rules 101, 103, 104 or 105.

1. The Australian Bar Association have published a "Best Practice Guide" for barristers in relation to the cab rank rule. That document helpfully sets out:
   1. The rule is of ancient origin. Its rationale lies in the availability of justice and equal access to legal representation, regardless of the nature of an individual's case or the personal preference of counsel. It has been described as a "fundamental and essential part of a liberal legal system", with Lord Hobhouse of the English House of Lords stating [Arthur JS Hall & Co v Simons [2002] 1 AC 615 at 739 per Lord Hobhouse]:

The duty to act for any client. This is a duty accepted by the independent bar. No one shall be left without representation. It is often taken for granted and derided and regrettably not all barristers observe it even though such failure involves a breach of their professional code.

1. In Giannarelli v Wraith (1988) 165 CLR 543 at 580, Brennan J (as his Honour then was) observed the following in respect of the rule:

Whatever the origin of the rule, its observance is essential to the availability of justice according to law. It is difficult enough to ensure that justice according to law is generally available; it is unacceptable that the privileges of legal representation should be available only according to the predilections of counsel or only on the payment of extravagant fees. If access to legal representation before the courts were dependent on counsel's predilections as to the acceptability of the cause or the munificence of the client, it would be difficult to bring unpopular causes to court and the profession would become the puppet of the powerful. If the cab-rank rule be in decline - and I do not know that it is - it would be the duty of the leaders of the Bar and of the professional associations to ensure its restoration in full vigour.

1. Whilst the Court accepts that Ms B ultimately returned the brief to appear at the final hearing in these proceedings as a result of a personal commitment which later arose (as provided for in Part B, Rule 105(b) of the Conduct Rules), the Court remains concerned, in light of the matters deposed by Ms B, that she accepted the part-heard trial in the R brief ahead of and/or in preference to the final hearing in these proceedings, and well before her personal commitment was known to her.
2. Part B, Rule 104 of the Conduct Rules provides:

A barrister must not accept a brief to appear on a day when the barrister is already committed to appear or is reasonably likely to be required to appear on another brief if by appearing on one of the briefs the barrister would not in the normal course of events be able to appear on the other brief or briefs.

1. From the contents of Ms B's affidavit, it is apparent that when she accepted the brief to appear at the part-heard trial in the R Brief:

(a) She had not previously been retained as counsel, nor had she appeared in the part-heard final hearing in the R brief; and

(b) She had already accepted the brief to appear at the final hearing in these proceedings.

1. In light of all of these matters, Ms B ought reflect on her professional obligations and conduct. It is suggested that she seek guidance from senior counsel and/or the Ethics Committee of the South Australian Bar Association with respect to her acceptance of the R Brief.

1. The matters that have been discussed thus far in relation to the Application in a Proceeding filed 2 April 2025 raise significant concerns in relation to Mr Jelbert's conduct, and in particular his honesty and candour with the Court.
2. Part A, Rule 4 of the Conduct Rules provides:

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. Whilst the affidavit in support of the application did not identify the foundation for the adjournment application, beyond Ms B having returned the brief, as earlier identified, at the hearing on 8 April 2025 Mr C submitted that the application was made on the basis that Ms B was the father's "counsel of choice". I accept that to be the case.
2. In those circumstances, the filing of the Application in a Proceeding on 2 April 2025, to enable the father's "counsel of choice" to appear at the final hearing in the proceedings, made without the knowledge or consent of the said "counsel of choice", nor agreement that they would in the future be able to accept the brief to appear, seemingly falls short of honest dealings with the Court.
3. Significantly compounding this apprehended impropriety, was the personal absence of Mr Jelbert from the hearing on 8 April 2025 as earlier discussed; particularly as the absence of Mr Jelbert resulted in an adjournment of the trial to the following day following the termination of counsel's instructions.
4. What is even more concerning about Mr Jelbert's absence on 8 April 2025 is that once he became aware that Mr C's instructions had been terminated, no efforts were made by Mr Jelbert to appear at the hearing, whether it be by telephone, Webex or some other mode of electronic communication. Instead, the father was required to appear self-represented before the Court and seek an adjournment to the following day; an application which may well have been refused, leaving the father without legal representation despite having both the benefit of a grant of legal aid and Mr Jelbert being the solicitor on record.
5. This failure of to appear at the hearing on 8 April 2025 appears to be a breach of Part A, Rule 3 of the Conduct Rules, earlier identified. In addition, I consider that the failure to appear is also likely to be a breach of Part A, Rules 4 and 5 of the Conduct Rules, 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. Unfortunately, the events of 8 April 2025 were not the end of the difficulties. This is because the following day, when Mr Jelbert did appear, he was, to use the colloquial term "double booked" and could not appear in two places at once. Egregiously, Mr Jelbert considered that the Court ought excuse him from appearing in one of the trials that had been listed that day, and perhaps even more egregiously, that if he was unable to be excused from one of the trials, he considered that it was appropriate that his client be self-represented; despite the benefit in the present case of the father having a grant of legal aid for his representation. Again, Part A, Rules 3, 4 and 5 of the Conduct Rules appear to have been disregarded.
2. The costs incurred by the mother in relation to all of these events, are matters that are difficult to overlook and will be the subject of separate adjudication. In addition, the impost on the public purse both as to the grant of legal aid and the squandering of Court time and resources cannot be ignored or underestimated.

THE APPLICATION IN A PROCEEDING FILED 1 APRIL 2025

1. By his Application in a Proceeding filed 1 April 2025, the father sought the following orders:
   1. This matter be listed urgently and before Friday 04 April 2025.
   2. The trial in the proceedings listed to commence Tuesday 08 April 2024 be vacated.
   3. Tindall Gask Bentley be discharged from acting for the Primary Applicant, Ms Auteberry.
   4. Trial material filed in the proceedings be uplifted from the Court file.
   5. The matter be listed for a compliance and readiness hearing not before 01 July 2025.
   6. The Primary Applicant, Ms Auteberry, pay to the Primary Respondent, Mr Auteberry, costs of and incidental to this application in a proceeding.

1. The affidavit filed in support of the application was relatively short on content, and included a number of annexures. In summary, the father deposed to the following by that affidavit:

(a) On 8 November 2023 he became aware that the mother's solicitor Ms G was (at paragraph 2):

in a position of conflict by acting for the applicant because of her personal relationship with the Applicant and past relationship with me. I have always known [Ms G] during my relationship with the Applicant but did not know that my position could be compromised until that day.

(b) He instructed his solicitors to raise his concerns with the mother's solicitors on 9 April 2023, which they did, in an letter addressed to "[Ms H]". By that correspondence the father's solicitor identified that:

(i) The father had raised with him whether Ms G could be called to give evidence in the proceedings as she was a "close friend of the family" and had attended the parties' wedding.

(ii) In addition, another solicitor at the firm (Ms J) was also a "family friend to the parties".

(c) Of some significance, other than identifying that Ms G "could be subpoenaed to give evidence", nowhere in that correspondence was an objection raised to Ms G, Ms J, or the solicitors firm acting for the mother. Rather the letter seemed to require an explanation as to whether these facts were correct and why they had not been disclosed.

(d) On 16 November 2023 the mother's solicitors responded. That correspondence (penned by Ms H), identified that Ms G was not a "close friend" and did not attend the parties' wedding nor their home, and in relation to Ms J whilst she was a "friend" of the mother, this piece of information had not been disclosed to the father's solicitor as it was "irrelevant". Additionally, the communication identified that Ms J was not "involved in or privy to the ongoing proceedings between the parties".

(e) The father deposed that from February 2024 he "looked for a record" to support his contention that the mother and Ms G were "long-standing friends" (at paragraph 5).

(f) On 17 March 2025 the father says that he took an old computer to be repaired, collecting the device the following day. Thereafter he asserts that he found images on the old device, including a photograph dated 15 August 2014 that he asserted was of a group of friends at dinner, in which the mother, Ms G and Ms J were present.

(g) On 26 March 2025 the father instructed his solicitor to send the image to the mother's solicitor. When regard is had to this communication it is apparent that after setting out a range of assertions as to Ms G's connection to the mother (some, but not all of which was deposed to in the affidavit as summarised at (k) below), with a response sought couched "... please respond as to how your firm does not act in conflict, and more specifically, without compromise to professional independence."

(h) On 28 March the mother's solicitors responded. The response from the mother's solicitor, annexed to the affidavit (again penned by Ms H), variously set out:

(i) There was no apparent "relevance" of the issue raised in the correspondence of 26 March 2025 to the issues presently before the Court;

(ii) Subject to "establishing relevance" further information was sought about the photograph, including information as to when it was taken, and who it was that was said to be in the photograph;

(iii) That until relevance was established, the mother's solicitors did not propose to respond further, other than to deny the various assertions set out in the communication as to the connection between Ms G and the mother.

(i) In addition, by that correspondence, the mother's solicitors chased a response from the father's solicitors to four separate communications sent in March 2025 regarding four outstanding issues preparatory to the final hearing, including Court ordered mediation, disclosure, objections to evidence and the preparation of a joint chronology for trial.

(j) The father also annexed to his affidavit further images which he considered "relevant", being an image of a present he asserts was sent to the parties by Ms G when their child X was born.

(k) The father also deposed that in relation to Ms G (at paragraph 11):

(i) He met Ms G at a dinner with the mother "at an Indian restaurant in the Adelaide CBD".

(ii) Ms G attended the parties' engagement party.

(iii) Ms G attended the former matrimonial home "socially, and on more than one occasion, and during which she and I discussed her work as a lawyer".

(iv) Ms G visited the home of the maternal grandparents at times when the father was present.

(v) Ms G telephoned the parties home after receiving her invitation to their wedding and apologised for being unable to attend.

(vi) In 2017, he sought advice from the mother's solicitors' firm for a "separate matter" as a result of his "past dealings with [Ms G]".

(l) He had not made the within application (to restrain the mother's solicitors' firm from acting sooner, "because [he] did not have any basis to support [his] contention that [Ms G] has a personal conflict to act for the [mother], and following her denial when [he] first raised this issue in 2023" (at paragraph 12).

1. There is no dispute that the Court has the ability to restrain practitioners from acting in proceedings. The power to do so derives from the Court's power to control its own processes and proceedings.
2. In in Porter v Dyer (2022) 402 ALR 659 (Lee, Besanko and Abraham JJ) ("Porter v Dyer"), the Full Court of the Federal Court authoritatively identified the relevant legal principles applicable to such applications as follows:
   1. The primary judge correctly identified the relevant principles. They have been comprehensively summarised by Brereton J in Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561 (at [76]) and Griffiths J in Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 (at [39]). Justice Griffiths' summary was as follows:

The relevant principles which guide the exercise of the Court's separate discretion are broadly as follows:

(a) The Court has an inherent jurisdiction to ensure the due administration of justice, to protect the integrity of the judicial process and to restrain legal practitioners from acting in a particular case as part of its supervisory jurisdiction (see, for example, Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446 at 452 per Mandie J and Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd (2014) 228 FCR 252; 318 ALR 507; 108 IPR 26; [2014] FCA 1065 at [37] per Beach J).

(b) The test to be applied is whether a fair-minded, reasonably informed member of the public might conclude that the proper administration of justice requires that a solicitor be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice (I prefer this formulation of the principle, as opposed to the use of the term "would": see Timbercorp at [62] per Anderson J and the cases cited therein, as opposed to the different formulation adopted by Beach J in Dealer Support Services at [94], upon which the Jawoyn Claim applicant relied, but I would regard even that higher standard to have been met in the circumstances here).

(c) Due weight must be given to the public interest in a client not being deprived of the legal practitioner of its choice, however, this important value can be over-ridden in an appropriate case (Dealer Support Services at [95] per Beach J).

(d) This basis for disqualification is not discharged by it simply being demonstrated that there is no risk of the misuse of confidential information (Dealer Support Services at [96] per Beach J).

(e) This basis for disqualification is an "exceptional one" and is "to be exercised with appropriate caution" (Geelong School Supplies Pty Ltd v Dean (2006) 237 ALR 612; [2006] FCA 1404 at [35] per Young J).

(f) A legal practitioner may be restrained from acting in a matter not only where the practitioner has a conflict of interest viz a viz a former client, but also viz a viz a person who is "as good as" a client (Macquarie Bank Ltd v Myer [1994] VicRp 22; [1994] VR 350 at 359 per J D Phillips J).

1. In Charisteas & Charisteas [2022] FedCFamC1A 160; (2022) FLC 94-109, the Full Court of this Court (Alstergren CJ, McClelland DCJ & Aldridge J), having had regard to the aforementioned statement of principle in Porter v Dyer, further identified:
   1. Additionally, we refer to and adopt that which was said by Thomas J in a New Zealand case, Kooky Garments Ltd v Charlton [1993] NZHC 2760; [1994] 1 NZLR 587 at 590 where, in commenting on the role of legal practitioners as officers of the Court, his Honour stated:

In such cases, apart altogether from the position of the client, the Court is not receiving the assistance of counsel who are observably independent. Independence is a function of counsel. The Court is entitled to assume that solicitors and counsel appearing before it possess that independence. Solicitors not only owe a duty to their clients to do the best for them but also owe an overriding duty to the Court. The same overriding duty is owed by counsel who have been granted a right of audience to appear in this Court. As part of their professional responsibility, therefore, solicitors and counsel must ensure that they do not appear in a matter in which they have an actual or potential conflict of interest or where, by reason of their relationship with their client, their professional independence can be called in question.

1. Significantly, that conflict of interest can arise where the personal or reputational interest of the legal practitioner is at stake in the proceedings. In that respect, in Mitchell v Burell [2008] NSWSC 772, Brereton J stated that:
   1. ... [The] line is crossed only when the solicitor has a personal stake in the outcome of the proceedings or in their conduct, beyond the recovery of proper fees for acting, albeit that the relevant stake may not necessarily be financial, but involves the personal or reputational interest of the solicitor, as will be the case if his or her conduct and integrity come under attack and review in the proceedings. The presence of such circumstances will be a strong indication that the interests of justice - which in this field involve clients being represented by independent and objective lawyers unfettered by concerns about their own interests - require the lawyer to be restrained from continuing to act.

1. The application to disqualify the mother's solicitors' firm was problematic for a variety of reasons, principally however because:

(a) No connection was drawn between the alleged relationship between Ms G and/or the solicitor's firm and the mother per se that put Ms G, and or the solicitors' firm in a position of conflict; and

(b) Even if there was substance to the complaint about the relationship between Ms G and the mother, the delays in the father bringing any application regarding the same rendered a fatal blow to the application.

1. The question of delay shall be dealt with first.
2. The father deposed that he first became aware that Ms G was in a position of conflict in acting for the mother on 8 November 2023, as a result of her personal friendship with the mother, and because she had allegedly attended the parties home and/or their wedding and/or sent a gift when one of the parties' children were born.
3. What is not clear however is why this issue only became a concern to the father in November 2023 and not any earlier, particularly when Ms G was the solicitor on record for the mother when she filed her Initiating Application in these proceedings on 18 October 2021, some two years earlier.
4. Moreover, having raised it in November 2023, it is unclear, beyond the father considering he needed some "proof" of the friendship, why the father waited to bring his application to deal with this issue until the last moment before the final hearing of the parenting proceedings in April 2025; over three years after the proceedings were commenced, and some 17 months after he first raised the issue with the mother's solicitors.
5. Finally on this topic, the photographic "smoking gun" said to be the "proof" the father considered necessary to find before bringing the application, was ultimately not relied upon by the father thus exposing the fallacy of explaining away the delays at his end by waiting to find such evidence to prove his assertions.
6. Moreover, when regard is had to the photograph, it is observed that there are six females in the photograph seated around a rectangular table. By his affidavit, the father made no attempt to identify who each person was, nor who he asserted to be Ms G. Regardless of this difficulty, the mother filed an affidavit deposed by one of the people in the photograph, who thereafter gave evidence identifying the six people in the photograph; notably, Ms G was not one of the six people.
7. In addition, it is also apparent from a perusal of the court file, that as and from approximately late 2024 Ms G has not been the solicitor on record for the mother.
8. When taken together the father has, by his conduct, waived the opportunity to take issue with Ms G and or the mother's solicitors' firm acting for the mother; even if it were the case that there was some merit to the issues he raises in support of his application to restrain the mother's solicitors from representing her.
9. Turning to the substantive difficulties with the application that has been filed by the father, it is a fundamental flaw that the father does not identify what it is about the nature of the mother's relationship with Ms G and/or the firm of solicitors that places either Ms G and/or the firm of solicitors in a position of conflict in acting for the mother.
10. During the hearing of the application, some attempt was made to put some flesh onto the bones of the father's application.
11. To that end, it was submitted on behalf of the father that a conflict arose in the solicitor's firm representing the mother because the father had consulted another solicitor from the firm in relation to driving and associated offences in approximately 2017.
12. The difficulty with this submission, however, is that beyond the firm writing to the father to set out the firm's terms of engagement (Exhibit "F3"), there is no evidence before the Court, documentary or as deposed by the father, identifying that the mother's solicitors' firm went on to represent the father in relation to these offences. Absent this being so, and where at most it appears that the father made an enquiry of the firm that they represent him, and where they did not go on to do so, it is not apparent that there is or was any confidential information personal to the father that the mother's solicitors' firm became possessed of as a result of these events, which now places them in a position of conflict.
13. So far as Ms G and/or Ms J are concerned, the issue is even more tenuous. Whilst it may well be ill advised for friends to act for friends, again, absent some clear identification as to the confidential information personal to the father that either Ms G and/or Ms J understand as a result of their personal friendship with the mother and/or the father, the mere allegation of a friendship is insufficient to successfully ground the application to disqualify either of them, or the mother's solicitors' firm from representing the mother.
14. In addition, no concern has been raised by the father that Ms G, Ms J and/or the mother's solicitors' firm have any personal stake in the outcome of the proceedings, nor that they are witnesses to be called to assist the court in resolving any fact in issue.
15. For all of these reasons, the application to "discharge" the mother's solicitors' firm from representing the mother necessarily fails, together with the balance of orders sought (despite the fact that no submissions were made in relation to the latter in any event), as represented by the orders made on 10 April 2025 dismissing the application filed on 1 April 2025.

1. For all of the reasons discussed herein, I consider that it is appropriate that the conduct of Mr Jelbert be referred to the Legal Profession Conduct Commissioner for further investigation.

I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari.