Matthews v R

1. The name of the Counsel, who is the subject of the referral, is to be redacted from the ex tempore reasons for judgment dated 10 September 2025, prior to any public dissemination.
2. The Principal Registrar of the Federal Circuit and Family Court of Australia (Division 1) is directed to send a copy of the following documents to the Queensland Legal Services Commission:

(a) Trial directions dated 25 February 2025 which set the five-day parenting trial down for hearing;

(b) The request by the mother's then solicitors by email dated 27 August 2025 that the matter be mentioned for them to seek leave to withdraw;

(c) Chambers' correspondence at 12.33 pm on 27 August 2025 to the parties, listing the potential withdrawal for mention at 2.00 pm on 28 August 2025;

(d) Notice of Address for Service of the mother's new solicitors filed 27 August 2025 at 5.09 pm;

(e) Email from the mother's new instructing solicitors at 12.22 pm on 28 August 2025 confirming that the urgent hearing was not required and that Mr Natanail had been briefed as Counsel;

(f) Show cause Order dated 4 September 2025;

(g) Covering email for the show cause Order from Chambers to Mr Natanail at 4.52 pm on 4 September 2025;

(h) Orders made by the Honourable Justice Curran on 16 April 2025 and 4 July 2025;

(i) The ex tempore reasons for judgment accompanying this order;

(j) This order dated 10 September 2025; and

(k) The transcript of the hearing on 10 September 2025 once received.

1. The covering letter sent by the Principal Registrar of the Federal Circuit and Family Court of Australia (Division 1) to the Queensland Legal Services Commission should state only the following:

At the direction of the Honourable Justice Brasch please find a copy of the following documents:

(a) Trial directions dated 25 February 2025 which set the five-day parenting trial down for hearing;

(b) The request by the mother's then solicitors by email dated 27 August 2025 that the matter be mentioned for them to seek leave to withdraw;

(c) Chambers' correspondence at 12.33 pm on 27 August 2025 to the parties, listing the potential withdrawal for mention at 2.00 pm on 28 August 2025;

(d) Notice of Address for Service of the mother's new solicitors filed 27 August 2025 at 5.09 pm;

(e) Email from the mother's new instructing solicitors at 12.22 pm on 28 August 2025 confirming that the urgent hearing was not required and that Mr Natanail had been briefed as Counsel;

(f) Show cause Order dated 4 September 2025;

(g) Covering email for the show cause Order from Chambers to Mr Natanail at 4.52 pm on 4 September 2025;

(h) Orders made by the Honourable Justice Curran on 16 April 2025 and 4 July 2025;

(i) The ex tempore reasons for judgment accompanying this order;

(j) This order dated 10 September 2025; and

(k) The transcript of the hearing on 10 September 2025 once received.

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

1. On 25 February 2025, I set down a trial in a parenting matter for five days commencing on Monday, 1 September 2025.
2. I will refer to that as the "five-day parenting trial".
3. On 27 August 2025 at 11.56 am, being the Wednesday immediately before the five-day parenting trial was to commence, the mother's then solicitors contacted Chambers and asked for the matter to be urgently listed so they could seek leave to withdraw.
4. On the same day at 2.35 pm, Chambers responded in the following terms:

Dear Practitioners,

Chambers confirms that Her Honour will mention this matter at 2.00 pm tomorrow via Microsoft Teams.

Depending on what is said tomorrow, Her Honour will expect submissions on Bar Rule 99(g) if relevant and the names of all other Counsel who have been approached to take the matter over if leave is granted to withdraw.

1. That urgent hearing did not occur because at 5.09 pm on 27 August 2025 new solicitors came onto the record for the mother in the five-day parenting trial.
2. On Thursday, 28 August 2025 at 12.22 pm the new solicitors confirmed to Chambers that the urgent hearing was no longer required. In that same email of 28 August 2025, the mother's solicitors informed Chambers that Mr Natanail of Counsel was briefed in the five-day parenting trial.
3. The problem with that was he was already briefed in a part-heard trial that was to resume on Thursday, 4 September 2025 ("the part-heard trial"), which is obviously within the days of the five-day parenting trial.
4. The first brief he held was to appear on day 9 of that part-heard trial.
5. On Monday 1 September 2025, being the first day of the five-day parenting trial, the Court asked Mr Natanail how he was managing his other commitment, being the other trial before Judge Demack. He replied, "Your Honour I have had to confirm other arrangements." That sounds like past tense. Whether and when Mr Natanail made other arrangements, and if in a timely fashion as required by the Bar rules, will be something the Queensland Legal Services Commission ("QLSC") can explore, if it wishes.
6. He also said he had to "fall on his sword" because he was not ready and was unprepared to start the five-day trial and sought it be adjourned to commence on Tuesday, 2 September 2025. This is despite the trial not starting until 1.30 pm on the first day of trial due to changes in the judicial diary. That meant he had some three and a half extra hours to prepare, then had the trial started at 10.00 am.
7. Counsel for the father and Independent Children's Lawyer reluctantly agreed to the adjournment.
8. What ought have been day 9 of the part-heard trial was, as Mr Natanail confirmed, ultimately adjourned. He told me he did not know if it was for lack of Counsel. It will be a matter for the QLSC if they wish to engage with the Chambers of Judge Demack to receive any correspondence about that adjournment.
9. After the five-day parenting trial concluded, this Court issued the following show cause Order on its own motion:

1. [Mr Natanail] is are [sic] required to attend before the Honourable Justice Brasch at 2.00 pm on Wednesday, 10 September 2025 whereby he will be required to show cause as to why Her Honour should not make a referral to the Legal Services Commission in circumstances where:

(a) He accepted a brief before Her Honour for a five (5) day trial on 1 to 5 September 2025, when he was already briefed in a part-heard trial before Judge Demack that was listed for Day 9 of trial on 4 September 2025.

1. In the event that [Mr Natanail] wishes to file an affidavit addressing the matters set out at Order 1(a), he is to file that affidavit by way of email to chambers [...] by no later than 10.00 am on Wednesday, 10 September 2025. 2. [Mr Natanail] is to provide to chambers via email any other affidavit/s he has been ordered to file about his conduct by no later than 10.00 am on 10 September 2025.
2. Chambers provided a copy of the show cause Order to Mr Natanail via email and confirmed the Courtroom. That email was dated 4.52 pm on Thursday, 4 September 2025.

1. Mr Natanail of Counsel is an officer of the court, where his primary duty to the court is supervised and enforced by the court. The court retains an inherent supervisory jurisdiction over its officers, which is directed at preserving the proper administration of justice.
2. Mr Natanail accepted that to be so.
3. With respect to Order 2 [of the show cause Order], Mr Natanail of Counsel did not provide an affidavit by the required 10.00 am this morning - but the act of filing was at his prerogative given the terms of the show cause Order.
4. He also did not provide anything in response to Order 3, [but confirmed he had filed a relevant affidavit].
5. Order 3 was mandatory. It was not up to him to decide whether he would furnish the affidavit or not. The Order was that he "is to provide to chambers" relevant affidavit/s.
6. As he told this Court, Mr Natanail has in fact been ordered twice by the Honourable Justice Curran [of this Court] to file an affidavit about his conduct.
7. He said in submissions that he fully respected and accepted any decision that this Court made and chose not to make submissions. He did however say that he also "chose" (and I confirmed that word with him) not to comply with the Court's Order 3.
8. The producing of orders in open court is at the heart of the judicial function and cannot be abrogated in other than exceptional or mandated circumstances (for example, see Matthews v R (No 2) [2013] NSWCCA 194).
9. Mr Natanail told me there were two separate orders made by Justice Curran. I am aware, because justice is open, that the first is dated 16 April 2025:

...

1. Not later than 4.00pm on 30 April 2025, [Mr Natanail], counsel appearing for the respondent mother, is to file and serve an affidavit setting out with particularity:

2. The circumstances of his medical illness/event causing his inability to appear before the Court on 16 April 2025, including any relevant medical certificates/documents.

3. The circumstances surrounding [Mr Natanail] having a brief to appear in final hearings in two Courts on 16 April 2025.

4. Not later than 4.00pm on 30 April 2025, [Mr Natanail], counsel appearing for the respondent mother, is to forward to my chambers any written submissions as to why the matter should not be referred to the Legal Services Commissioner for referral to the Queensland Bar Association.

...

THE COURT NOTES THAT:

...

1. Mr O'Shaughnessy, the respondent mother's solicitor, emailed Chambers on the morning of 16 April 2025 at 8.52am to inform the Court that [Mr Natanail] had experienced a medical episode shortly after the matter had adjourned the day prior. The correspondence advised that [Mr Natanail] was still feeling unwell and proposed the following three options before the Court:

2. To adjourn the matter until Thursday 17 April 2025;

ii. For [Mr Natanail] to attend via teams on 16 April 2025; or

1. To commence at a later start time, to allow [Mr Natanail] additional time to recover.

...

1. Mr George informed the Court that [Mr Natanail] was appearing as counsel in another matter before a different Court that was part heard, and that he had appeared that morning at 10.00am by AVL before that judge and sought an adjournment of the part heard proceedings due to his medical episode.

(Emphasis in original)

1. Mr Natanail accepted he did not comply with that Order of Justice Curran. Her Honour then ordered on 4 July 2025:
   1. By no later than 4.00pm on 18 July 2025, [Mr Natanail] of counsel for the Respondent Mother, is to comply with Order 3 and 4 of the Orders made on 16 April 2025.

1. The Bar Association of Queensland has conduct rules. Rule 98 is plain and clear:
   1. 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.
2. There are other rules that may have bearing on Mr Natanail's conduct to take the five-day parenting trial brief, when already briefed in another matter in that period, and, the circumstances in which he returned the brief for day 9 of the part-heard trial:
   1. A barrister must not return a brief to appear in order to accept another brief to appear unless the instructing solicitor or the client in the first brief has permitted the barrister to do so beforehand, after the barrister has clearly informed the instructing solicitor or the client of the circumstances in which the barrister wishes to return the brief and of the terms of this Rule and Rule 104.

...

1. A barrister who wishes to return a brief which the barrister is permitted to return must do so in enough time to give another legal practitioner a proper opportunity to take over the case.

...

1. A barrister must not hand over a brief to another barrister to conduct the case, or any court appearance within the case, unless the instructing solicitor has consented to that course.

1. It is not for the Court to determine whether or not Mr Natanail's conduct is unsatisfactory professional conduct or professional misconduct.
2. That will be the task of the QLSC, to whom this matter will be referred.
3. It will be a matter for the QLSC if they wish to reach out to the Chambers of Judge Demack for any correspondence relevant to the adjournment of day 9 of the part-heard trial.
4. I will therefore make the orders, which are now set out at the start of these Reasons.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch.