Tesar & Szep (No 3) [2026] FedCFamC1F 21 (21 January 2026)

Colgate Palmolive Co and Another v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225

Dayal (2024) 386 FLR 359; [2024] FedCFamC2F 1166

Galbadon & Galbadon [2015] FamCAFC 59

Handa & Mallick [2024] FedCFamC2F 957

Helmold & Mariya (No 2) [2025] FedCFamC1A 163

JML Rose Pty Ltd v Jorgensen (No 3) [2025] FCA 976

JNE24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1314

Kohan & Kohan [1992] FamCA 116; (1992) 112 FLR 151

Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178

Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157

Mertz & Mertz (No 3) [2025] FedCFamC1A 222

Murray on behalf of the Wamba Wemba Native Title Claim Group v State of Victoria [2025] FCA 731

Valu v Minister for Immigration and Multicultural Affairs (No 2) (2025) 386 FLR 365; [2025] FedCFamC2G 95

Withers & Russell (No 2) [2022] FedCFamC1A 197

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

1. The Principal Registrar of the Court, or delegate, refer this matter to the Commissioner, Legal Services Commission Queensland to consider the conduct of Mr K, solicitor-advocate for the respondents in this proceeding.
2. The Principal Registrar of the Court, or delegate, provide with the referral:

(a) These Orders and the Reasons for Judgment made 21 January 2026;

(b) The solicitor-advocate's Submissions filed 9 January 2026 and signed by him;

(c) The transcript of the hearing on 12 January 2026; and

(d) The transcript of the hearing on 19 January 2026.

1. Mr K's name be anonymised in the published Reasons for these Orders.

AND WITH RESPECT TO COSTS, THE COURT ORDERS THAT:

1. Pursuant to r 12.15(1) and (4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and within 28 days of the date of this Order, Mr K is to:

(a) Personally pay to the Trust Account of Armfield O'Brien Law, being the applicant's solicitor, for and on behalf of the applicant, costs fixed in the sum of $16,189.05;

(b) Not charge his client for the costs of and incidental to:

(i) The submissions dated 9 January 2026;

(ii) His appearance on 12 January 2026; and

(iii) The appearance on 19 January 2026;

(c) Repay any money that the client has already paid towards any costs in Order 4 (b) above.

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

1. The parties in this matter are in dispute about whether a de facto relationship existed between the applicant and first respondent, so as to enliven, or not, the Court's jurisdiction pursuant to Part VIIIAB of the Family Law Act 1975 (Cth) ("the Act").
2. The male applicant says all jurisdictional requirements are met. The female first respondent says to the contrary. The second respondent is a corporate entity, B Pty Ltd, and is irrelevant for present purposes.
3. That jurisdictional issue should have been the subject of a hearing on 12 and 13 January 2026; the parties referred to this as the "threshold hearing".
4. However, because of the conduct of the solicitor-advocate for the respondents ("the solicitor-advocate"), that hearing was adjourned.
5. That conduct concerned, in part, the solicitor-advocate filing and relying upon submissions (signed by him), that contained hallucinated case citations being:[1]

... "faulty and ... fictional citations" or as "entirely fabricated" ... where "artificial intelligence generates false and misleading results" ... where AI "create(s) fake legal citation"...

1. But the use of Artificial Intelligence ("AI") to generate those submissions, redolent with faulty and fictitious citations, was not the only issue where the Court was, frankly, misled by the solicitor-advocate.[2] It is an entirely separate issue for the Legal Services Commissioner what she makes of any of the solicitor-advocate's conduct within her regulatory framework.
2. Unfortunately for the solicitor-advocate, he initially told the Court, in unequivocal terms of "yes" confirmations as follows; I use the transcript so it will speak for itself as opposed to a summary:[3]

HER HONOUR: ...Now, the submissions from Friday that you rely upon - now, you've signed them - you prepared these submissions, did you, yourself, by your own personal research and exertion?

[MR K]: Yes, I did.

HER HONOUR: And you found every single case yourself, checked that they stood for what you said they stood for?

[MR K]: Yes, I did.

HER HONOUR: You got hard copies of the cases? And I say that because I can't find a lot of them.

[MR K]: I don't have hard copies ‑ ‑ ‑

HER HONOUR: You've got hard copies in authorised ‑ ‑ ‑

[MR K]: ‑ ‑ ‑ but I did check that they existed. The difficulty for me is that my office was closed last week and I was preparing this case without assistance, so I couldn't produce a book, but I will do that.

1. Implicit in the last part of this exchange was that office logistics was all that stood in the way of him providing the cases to the Court. A little later, this occurred:[4]

HER HONOUR: ... And I would be grateful too when you've got them - because obviously you've turned your mind to them as recently as Friday - when you have hard copies for - well, matter for you what you do - but for Mr Mould and for me, highlight the - where you have - the proposition that you say they stand for. Can you do that?

[MR K]: Yes.

HER HONOUR: Can you do that?

[MR K]: Yes, I can do that.

HER HONOUR: Good.

1. The matter was stood down not only so the solicitor-advocate could have copies of specific cases sent from his office, but also so he could discuss with his client whether he was a material witness in her case (he adopted the word "material" in discussions) or the solicitor-advocate. Contrary to r 27 of the Australian Solicitor Conduct Rules 2023,[5] he proposed to be both.
2. It consequently came to light in the applicant's solicitor's affidavit filed for the subsequent costs hearing that on 8 January 2026 (being the week before the threshold hearing), the applicant's solicitor put the respondents' solicitor-advocate on notice of, inter alia, r 27 of the Australia Solicitor Conduct Rules 2023,[6] but received no meaningful reply from the solicitor-advocate. On 9 January 2026, the applicant's solicitor also sent Objections to evidence to the solicitor-advocate, including but not limited to an objection to the solicitor-advocate's entire affidavit on the basis of r 27.[7]
3. Thus, when the Court raised the matter on 12 January 2026 (on what should have been day one of the threshold hearing) the Court's questions about him wearing two irreconcilable hats could not have been news to him.
4. After being given time to have hard copies of the requested cases sent from his office and to discuss with his client whether he was solicitor-advocate or witness, he subsequently told the Court as follows, again using the transcript rather than a summary:[8]

HER HONOUR: [Mr K], how did you go with those cases?

[MR K]: I am instructed from a staff solicitor in my office that the authorities referred to, that your Honour has identified, are incorrect ‑ ‑ ‑

HER HONOUR: Hang on. You confirmed ‑ ‑ ‑

[MR K]: And ‑ ‑ ‑

HER HONOUR: You confirmed to me you signed the submissions on Friday, yes?

[MR K]: Yes.

HER HONOUR: You prepared the submissions yourself by your own personal research and own exertion, to which you said yes.

[MR K]: Yes.

HER HONOUR: I asked you, "Did you find every single case yourself?" to which you said yes.

[MR K]: Yes.

HER HONOUR: And I asked you, "Did you check that they stood for what you say?" to which you said yes.

[MR K]: Yes. Your Honour, in light of the points that you've raised in respect of these submissions, they're unreservedly withdrawn, and I ‑ ‑ ‑

HER HONOUR: Well, that doesn't solve some problems here.

[MR K]: ‑ ‑ ‑ will need to recast these submissions. I understand that, your Honour, but it would lead us in a position ‑ ‑ ‑

HER HONOUR: Did you use AI for these?

[MR K]: Sorry?

HER HONOUR: Did you or someone who is in your employ use AI for these? Artificial intelligence?

[MR K]: Yes. Yes, I think so. That looks exactly what has happened.

HER HONOUR: Oh dear.

[MR K]: Yes, your Honour, and for that reason ‑ ‑ ‑

HER HONOUR: Okay. So - actually, I'm not going to ask you. Your answers to the very specific questions I asked you - all right. So it looks like AI has been used.

[MR K]: Yes.

1. Despite the above coming to light, and thus with serious questions over the solicitor-advocate's conduct and integrity, he nevertheless wanted to press on representing his client and have the jurisdictional issue determined - and agitated that position several times.
2. How he thought he could represent his client before this Court, where he had plainly misled the Court with respect to his initial ownership of his written submissions, then his volte-face, and, his use of AI hallucinated cases, is as perplexing as it is confounding.[9]
3. It was equally hard to understand how the solicitor-advocate thought he could be both a material witness in his client's case and solicitor-advocate at the same time, contrary to r 27 of the Australian Solicitors Conduct Rules 2023. This had been raised with him in the week prior to trial, yet he pressed on with that dual positioning when standing before the Court as solicitor-advocate and reading his Case Outline containing his own, material, affidavit.
4. With misleading statements made to the Court by the solicitor-advocate in representing the submission were the product of his own personal research and exertion, and, with the irreconcilable revelation AI was used and had generated misleading, hallucinated cases, the hearing was adjourned.
5. Accordingly, these Reasons concern whether:

(a) The solicitor-advocate ought be referred, or not, to the Legal Services Commission; and

(b) An order ought be made for the solicitor-advocate to pay the applicant's relevant costs thrown on an indemnity or standard basis. The applicant sought indemnity costs. The solicitor-advocate accepted responsibility for those costs, but argued for the standard assessment.

1. There is no need to say terribly much about the background to the substantive dispute given the discrete nature of the issues about which these Reasons are concerned.
2. Suffice to say, the applicant was born in 1957, and the respondent was born in 1963.
3. The applicant says the parties were in a de-facto relationship between December 2015 and December 2022.
4. The respondent says that they were not in a de-facto relationship, but rather a long-distance relationship from 2015 until the beginning of the COVID-19 pandemic when she travelled to Australia and spent 494 days living in the applicant's house. She says they were "friends" and not in a "permanent relationship".[10] She does, however, accept the applicant assisted her with the property management of her investment properties from 2018 but says he was paid commissions and reimbursed for expenses. She also agrees that he undertook renovation work over a period of four years on an investment property she purchased but says that she paid him for the work.
5. Given the trial could not proceed, the parties competing contentions regarding the existence of a de-facto relationship will be a matter for another day.

AI and the solicitor-advocate's representations to the court

1. These Reasons add to an unfortunately developing body of caselaw concerning the use of AI in the preparation of documents filed with the Court,[11] and with legal practitioners being referred to their relevant Legal Services Commission (however so styled in each state and territory) and/or being required to personally pay costs.
2. Recently, the problems in using AI were set out by the Appeal Division of this Court in Mertz & Mertz[12] (per Aldridge, Carew & Behrens JJ), which I respectfully echo:
   1. The issues arising from the use of AI by legal practitioners have been carefully and helpfully considered by Judge A. Humphreys in Dayal [2024] FedCFamC2F 1166 ("Dayal"). In Dayal, her Honour referred a legal practitioner to the Office of the Victorian Legal Services Board and Commissioner in circumstances where he had acknowledged that he had used an "AI driven research tool module" to generate a list of authorities and summaries provided to the Court, that he had not reviewed the results produced by the module to ensure their accuracy, and that the authorities did not exist. Her Honour identified the significant risks which attend the use of AI tools in legal practice and identified the relevant duties of legal practitioners, including the duty not to mislead the Court, to deliver legal services competently and diligently and not to engage in conduct which is likely to diminish public confidence in the administration of justice or bring the legal profession into disrepute. Those obligations extend, of course, not only to the use of AI but also to addressing difficulties when they are identified (as they were here).
   2. In addition to these general duties, in proceedings under the Family Law Act 1975 (Cth) ("the Act"), by s 114Q of the Act and subject to various exceptions, communication to the public of an account of proceedings that identifies a party, a witness or an associated or concerned person is prohibited. There is a risk that entering draft documents into an AI program will result in a breach of s 114Q, a breach of the Harman undertaking, breaches of rules in respect of material produced under subpoena and/or give rise to a waiver of legal professional privilege. The Supreme Court of New South Wales, Practice Note SC Gen 23 - Use of Generative Artificial Intelligence (Gen AI), 28 January 2025 prohibits the entry into any Generative AI program of any information subject to non-publication or suppression orders, the Harman undertaking, material produced on subpoena, or any material that is the subject of a statutory prohibition upon publication unless the legal practitioner or person responsible for the conduct of the proceeding is satisfied as to confidentiality and other matters (para 9A).
   3. Useful guidance is also provided by the Supreme Court of Victoria, Guidelines for Litigants: Responsible Use of Artificial Intelligence in Litigation, May 2024.
   4. Other Courts, including this one, are considering what guidelines and practice directions to issue, but the following are abundantly clear:

(1) If AI is used to identify authorities for the purposes of any Court document, then it is incumbent on the author and those accepting responsibility for the document to verify that those authorities are both accurate and relevant to the proceedings. Each of the relevant legal practitioners conceded that they had not done so in respect of the original Summary of Argument and List of Authorities.

(2) Where AI is used more widely, such as to prepare the text of submissions, create footnotes or prepare a chronology, the same responsibility to ensure that the material is accurate and relevant arises.

(3) As the submissions of King's Counsel and counsel in this matter acknowledge, the use of AI in the preparation of Summaries of Argument or other submissions does not absolve the author or person who accepts responsibility for the documents from any of their professional or ethical obligations to the Court or the administration of justice. To the contrary, it calls for careful interrogation of whether such use is appropriate, what disclosure is appropriate, and what safeguards must attend to its use.

1. A differently constituted Appeal Division of this Court said similarly in Helmold & Mariya (No 2)[13] at [8]-[9] (per Aldridge, Campton & Christie JJ), which I also, respectfully, endorse:

Legal professionals have specific ethical obligations to ensure that the written material placed before the Court is accurate. As Bell CJ observed in May v Costaras, all litigants (including those who appear on their own behalf) are under a duty not to mislead the Court or their opponent. Reliance upon unverified research generated by AI has the capacity to confuse, to create unnecessary complexity, to result in wasted time and to mislead the Court and other parties.

A specific issue arises in the context of family law litigation, by operation of Pt XIVB of the Family Law Act 1975 (Cth) ("the Act"). If a person inputs court documents into an open AI program, we consider that this may have the potential to fall foul of the provisions which prohibit communication of an account of proceedings to the public or a section of the public. In a similar vein, input of documents arising out of the proceedings into a generative AI program which stores, collates and replicates data may waive privilege or fall foul of the requirements that certain matters be treated as commercial in confidence. These issues warrant extreme caution.

1. In Wamba Wemba at [13], Murphy J of the Federal Court of Australia referred to the decision of Judge Humphreys in Dayal,[14] which, in turn, referred to:

... the US District Court case of Mata v Avianca Inc, 678 F Supp 3d 443 (S.D.N.Y. 2023) in which Mr Mata's lawyers filed submissions containing fake authorities generated by ChatGPT. The practitioners initially stood by the submissions when called into question by the Court and they were found to have acted with bad faith and in violation of various court rules. There, the Court said (at 448-449):

Many harms flow from the submission of fake opinions. The opposing party wastes time and money in exposing the deception. The Court's time is taken from other important endeavors. The client may be deprived of arguments based on authentic judicial precedents. There is potential harm to the reputation of judges and courts whose names are falsely invoked as authors of the bogus opinions and to the reputation of a party attributed with fictional conduct. It promotes cynicism about the legal profession and the American judicial system. And a future litigant may be tempted to defy a judicial ruling by disingenuously claiming doubt about its authenticity.

1. Turning to this matter, as ought be apparent from the transcript extracts at the start of these Reasons, the Court asked the solicitor-advocate about the provenance, accuracy and veracity of his citations, and he initially stood by them.
2. In addition to that which has already been extracted with respect to the solicitor-advocate's ownership of his submissions filed 9 January 2026, the following exchanges also occurred. These extracts are long, but it is, in my view, preferable that the actual exchanges speak for themselves and not be the subject of summary.
3. This exchange occurred just after the solicitor-advocate said he could not provide a court book with the cases upon which he relied, as extracted above at [7], because no one was available in the office to assist:[15]

[MR K]: - - - but I did check that they existed. The difficulty for me is that my office was closed last week and I was preparing this case without assistance, so I couldn't produce a book, but I will do that.

HER HONOUR: Well, okay. Well, when we stand down - - -

[MR K]: I will do that by the end of the day.

HER HONOUR: - - - you can bring up, because I can't find a lot of them.

[MR K]: Okay.

HER HONOUR: I can't find a lot of them. And I also can't find - those I could find stood for a lot of what you said they stood for. Anyway, when you talk to your client about only solicitor advocate or witness - because I think it's important she understands that - you will be able to get your office to - let me pick four, because I'm struggling to find a lot of them either by their name or citation or both. So I'm proposing - I will hear from you in a minute, Mr Mould, but I'm proposing to stand down for half an hour so you can have a decent discussion, [Mr K], with your client about what role are you here, and in the meantime, let me pick four.

You can get your office to send up authorised copies, and by that I mean law reports, or if they're not, sometimes they won't be in authorised copies, but they will be in PDF-signed PDF format on, say, for example, Austlii. LC & TWM - you probably want to write these down because I'm giving a half an hour, because obviously if you looked at them on Friday and assured yourself they stood for what they stand for, you will be able to get them quickly - LC & TWM, because I couldn't find that. So that's on page 2 [of the written submissions of 9 January 2026]. Page 3, Iyengar , I-y-e-n-g-a-r, v Minister for Immigration. Couldn't find that by citation or by - sorry, I couldn't find it by name. Hamlet & Hamlet - the two at the top on page 4, Hamlet & Hamlet, Furlan & Furlan. There's a number of others I couldn't find too, but let's just start with those. And I would be grateful too when you've got them - because obviously you've turned your mind to them as recently as Friday - when you have hard copies for - well, matter for you what you do - but for Mr Mould and for me, highlight the - where you have - the proposition that you say they stand for. Can you do that?

[MR K]: Yes.

HER HONOUR: Can you do that?

[MR K]: Yes, I can do that.

HER HONOUR: Good.

[MR K]: But the substance of this case is the evidential question of whether they were in a de facto relationship - - -

HER HONOUR: Right now, I'm concerned - - -

[MR K]: - - - to be determined.

HER HONOUR: - - - with you relying upon cases that you've confirmed for me that you've found from your own personal research and exertion that I can't find. You have 30 minutes. Mr Mould, that suits you?

MR MOULD: Yes, your Honour. I was going to mention the same thing.

HER HONOUR: You can't find - - -

MR MOULD: Most of them I can't find, and - - -

HER HONOUR: Okay. Well, I was worried it was my poor research skills over the weekend.

MR MOULD: No, and I went - I was very thorough. I went LexisNexis, then AustLii.

HER HONOUR: Yes.

MR MOULD: Those two cases of Hamlet & Hamlet and Furlan & Furlan, the citations do actually refer to other cases. Hamlet & Hamlet is Haven & Haven, and Furlan & Furlan - - -

HER HONOUR: Which, on my - when I found it, that's an arbitration case.

MR MOULD: Completely irrelevant to the points referred to, and Furlan & Furlan is Scott & Munayallan.

HER HONOUR: Number 2.

MR MOULD: Yes.

HER HONOUR: Costs application.

MR MOULD: Yes, just not - - -

HER HONOUR: And my research, just with the LC & TWM, couldn't find a case by that name, notwithstanding it says on page 2 of [Mr K]'s submissions frequently relied upon. I couldn't find a case by that name, but the citation I found there was a case called Marshal of the Family Court of Australia and Peyton

MR MOULD: That's what I found too.

HER HONOUR: - - - with respect to issuing warrants.

MR MOULD: Completely irrelevant. That's right. Yes.

HER HONOUR: And, you know, I've gone through all of them, but I'm just picking four to give [Mr K] the benefit of - he has told me as an officer of the court, well, he has signed the submissions, he prepared them himself, he found every single case, and he has checked what they stood for. Iyengar, I couldn't find any - Iyengar, couldn't find anything by that name. The citation I found, my own research, is - which I'm perfectly entitled to do when I get a case authority from solicitor's representatives to go and look at the whole of the case, to make sure, yes, is there any - what's it saying. What I found is Jadwan Pty Ltd v Rae & Partners (A Firm), which was actually about negligence of a solicitor. Anyway, I will give you 30 - let's just start with those four, [Mr K].

[MR K]: Yes.

HER HONOUR: You've got a heads-up here as to what I found, and it seems to be similar to what another officer found. I have the same difficulties with a number of - I just can't find most of the cases, and some of them, they don't seem to actually stand for what you say they do. Page 3, Koitaki Para Rubber Estates, that does exist, but it's - on my read of it, it's to do with a company - - -

MR MOULD: Yes.

HER HONOUR: - - - and business operations, not a person. Hamlet & Hamlet, Furlan, Ferraro. I know that one. Whisler & Whisler.

MR MOULD: Your Honour, can I just - about Ferraro & Ferraro - - -

HER HONOUR: I don't think it actually is - that's not what it says.

MR MOULD: That's right. Yes, it's not about adult offspring at all. One of those big money cases.

HER HONOUR: No. I know. I've been doing this, I think, even longer than you, Mr Mould, and that's what twigged my attention, because I'm not a novice to this stuff. These case names, I thought I've never heard of those before, and I've been doing this stuff for 25 years. So Ferraro, anyway, I was prepared to let Ferraro go on the basis it could be a matter for submissions because I don't read it having anything to do with adult offspring. Whisler seems to be - so page 5 - seems to be a case called Perlman & Perlman, which was - seems to me to be about enforcements of maintenance agreements. Mr Mould, did you find this anywhere?

MR MOULD: I didn't find Perlman. I couldn't find that case at all, and I used the case and the reference, so - - -

HER HONOUR: Yes. Rolfe & Rolfe, the citation belongs to a case called Sanders & Sanders, at least on my view, and it's about case management.

MR MOULD: Yes, I found that one, and yes, I couldn't find any Rolfe & Rolfe.

HER HONOUR: Yes. Jonah & Jonah, not sure - - -

MR MOULD: Is it Jonah & White, your Honour?

HER HONOUR: Sorry. My apologies. Jonah & White seems to be the male did pay her some money, but that didn't seem - I was not sure that summary helps. Regan & Walsh, I couldn't find, or in that form doesn't exist. PY & CY, each of the three cases on page 7**, I - sorry, I couldn't find.** The first one I couldn't find. The second one, Jonah & White, I can't see what it has got to do with trusts. Couldn't find any mention of anything commercial, nor could I find anything about insistence of licences or formal remuneration. Kessy & Kessy, the reference to social seems to be limited to Department of Social Security. Page 8, Bevan & Bevan, a case with which I'm well familiar. I couldn't find that quote. There's a quote there. I couldn't find that.

MR MOULD: Neither could I, your Honour.

HER HONOUR: Anyway, let's start off, [Mr K], with - first of all, whilst you're talking to your client, to your solicitor advocate or witness, then let's start off with those four cases, and I will look forward to receiving a hard copy. Half an hour enough time?

(emphasis added to fictitious or faulty citations)

1. When the matter came back on, the exchange occurred about AI as set out at [12] above.
2. As referred to in Mertz & Mertz and Helmold & Mariya (No 2), and with respect to s 114Q of the Act and the Harman obligation, this exchange occurred after the solicitor-advocate confirmed AI had be used as set out in [12]:[16]

HER HONOUR: Did any court documents, affidavits, get put through any AI process?

[MR K]: No.

HER HONOUR: Are you sure?

[MR K]: Yes.

HER HONOUR: So AI, when generating those submissions, somehow magically knew to refer to the wife as "[...]"? - - -

1. Later, I indicated to the solicitor-advocate and Counsel for the applicant as follows:[17]

HER HONOUR: I don't see how, [Mr K], the trial could proceed today, given what you told me earlier and what you've told me now. I'm sure you're well familiar with the Full Court decision of Mertz, M-e-r-t-z, November last year, but I will give you a copy, because you may not be. So what I'm thinking of doing is, one, adjourning the case to a later date. I would like to hear from each of you about the parties going to mediation.

...

So first issue I'm thinking of is adjourning the de facto to a later date. Two, requiring the parties to attend a mediation. Because ..... can all spend lots and lots of legal fees, or with a mediator focusing their minds on what they will each spend going forward, the risks each way. Sometimes commerciality reigns.

So that's number two. I'm considering - [Mr K], your turn - a show cause hearing, I can have it next week, Monday 2.15, as to why I shouldn't refer you to the Legal Services Commission. I would propose giving you, if you wish to, by close of business, 4 o'clock this Friday if you wish to file any submissions or affidavit in that regard. And I will give - my associates will give you - whilst you're outside thinking about this, a decision of the Appeal Division of this court, Mertz & Mertz (No 3). It's Full Court, I'm bound by it. You will see in that matter that trying to withdraw submissions generated by AI was insufficient. They had been filed.

[MR K]: Understood, your Honour.

HER HONOUR: Whilst we stand down, Mr Moulds, you can consider your position about costs - and you can too, [Mr K]. But I think that shoe is truly on the other foot in that regard - whether your seeking costs thrown away, if you are, against whom, and whether you want to make those submissions orally today, or whether you want to in the next day or two put in written submissions. And then the next thing I'm thinking is then adjourn off your response to any costs application, [Mr K], to 2.15 next Monday. But I'm sure you're alert to our rules. I can make cost orders of the court's own volition and against legal practitioners.

[MR K]: I understand.

HER HONOUR: Okay. So even if Mr Mould - the issue still arises about whether I ought, in the court's own discretion, make a costs order and who it ought to be against. So that's my thinking. I think it's only ..... that I raise. That's what I'm thinking. Half an hour should be sufficient to talk through adjourning the matter, whether I require the parties to attend mediation. And then it might be best - I imagine it's a matter for you, [Mr K], that you might, with respect to a show-cause hearing, discretion may be the better part of valour at this point of time, and you take advices, etcetera, and tell me what I need to know next Monday. Can you - you just printed off Mertz, did you? Can you do a copy for Mr Mould too, just so both counsel ‑ ‑ ‑

MR MOULD: I've got a copy already.

1. In relation to the mooted adjournment, I have already referred to the solicitor-advocate's position that the trial on the jurisdictional issue continue and with him as solicitor-advocate. Counsel for the applicant asked that the matter proceed undefended, but after some discussions, that was not pressed.
2. The threshold hearing was adjourned and the parties ordered to attend mediation after discussions between bench and bar.
3. Further, I determined to hold a show cause hearing a week later, being Monday, 19 January 2026 at 2:15 pm. The solicitor-advocate confirmed that timeframe was appropriate. I am satisfied that time frame provided ample opportunity for the solicitor-advocate to prepare for the show cause hearing and provided an opportunity to be heard - "affording the opportunity is all that the law and principle require".[18] The show cause Order was in the following terms:

THE COURT ORDERS THAT:

1. [Mr K], solicitor, and any legal representative he may retain, is required to attend before the Honourable Justice Brasch at 2.15 pm on Monday, 19 January 2026 in person whereby he will be required to show cause as to why Her Honour ought, or ought not, refer him to the Legal Services Commission with respect to:

(a) Him confirming to the Court that with respect to the written submissions filed on 9 January 2026 and signed by him that:

(i) He had prepared those submissions himself by his own personal research and exertion;

(ii) He had, himself, found every single case referred to in those submissions;

(iii) He had checked that the cases cited by him stood for what he said they did in the submissions; and

(iv) He could provide hard copies of the four requested cases in an authorised form, or PDF stamped if from Austlii, and, would highlight where the cases stood for the propositions he contented;

(b) Subsequently telling the Court that:

(i) He was instructed from a staff solicitor of his office that the authorities referred to (in earlier discussions) were incorrect;

(ii) The submissions filed on Friday were generated using Artificial Intelligence.

(c) Whether the use of Artificial Intelligence involved, breached s 114Q of the Family Law Act 1975 (Cth) or the Harman undertaking; and

(d) The use of Artificial Intelligence to generate submissions, containing hallucinated cases, filed in this Court.

1. In the event that [Mr K] wishes, entirely at his own election, to file an affidavit or written submissions addressing the matters set out at Order 1, he is to file that material by no later than 4.00 pm on Friday, 16 January 2026.

AND THE COURT NOTES THAT:

1. [Mr K] was subsequently unable to provide the hard copies of the cases referred to in Order (1)(a)(iv) above.

2. With respect to Order 1(d), the Court provided [Mr K] a copy of Mertz & Mertz (No 3) [2025] FedCFamC1A 222.

3. It is not for the Court to determine whether [Mr K] has engaged in unprofessional conduct or professional misconduct; that is for the Legal Services Commission. Rather, the show cause hearing concerns whether the referral ought, or ought not, be made.

(Emphasis in original)

1. At the show cause hearing on 19 January 2026, the solicitor-advocate made no submissions on the question of the referral. He said that the listing Order of 12 January 2026 (extracted just above) fairly encapsulated the issues arising from the hearing of that date.
2. Of course, the Legal Services Commissioner is not bound by the terms of the listing Order in whatever she wishes to examine. The detail in the listing Order was to focus the solicitor-advocate's mind on what had happened at the 12 January 2026 hearing.
3. Counsel for the applicant drew attention to specific paragraphs of his written submissions on costs filed 13 January 2026, which referred to the solicitor-advocate's conduct.
4. Whether to refer the solicitor-advocate, or not, is not just about his individual conduct including, inter alia:

(a) His duty to not mislead the Court; and

(b) His duty to deliver legal services competently and diligently.

1. In addition to those matters, his conduct raised potentially wider implications with respect to:

(a) The public confidence in the administration of justice; and

(b) Bringing the legal profession into disrepute.

1. I also respectfully adopt what the Mertz & Mertz Court said at [18]:

... That is not the only purpose of referring the matter; as Judge A. Humphreys emphasised in Dayal, it is in the public interest that those regulating the legal profession are aware of examples of difficulties which have arisen from the use of AI in the preparation of Court documents.

1. It is not for this Court to determine whether the solicitor-advocate's conduct amounted to professional misconduct or unprofessional conduct or any such other outcome. That is for the Commissioner of the Legal Services Commission of Queensland. The question before this Court is whether the referral ought be made in the first place.
2. In all the circumstances set out in these Reasons, it is appropriate that the matter be referred to the Commissioner of the Legal Services Commission of Queensland as the relevant professional disciplinary body in the State and the Commissioner be provided with the relevant materials as set out in the Orders at the start of these Reasons. The provision of those documents was discussed with the solicitor-advocate, with which he did not cavil.

1. As a consequence of the adjournment on 12 January 2026 (what should have been day one of the threshold hearing), Counsel for the applicant made an oral application for costs, to the effect that the applicant have his costs thrown away on an indemnity basis and as against the solicitor-advocate, the first respondent or both.
2. I made Orders that he file an affidavit and submissions as to costs by close of business Tuesday, 13 January 2026. He did and refined his application for costs on an indemnity basis, with a fall back on the standard scale, and to be paid personally by the solicitor-advocate.
3. The solicitor-advocate was given a week to consider his position with respect to same, and the costs application was adjourned to the 19 January 2026 hearing to be heard after the show cause hearing on the same date.
4. Section 114UB(1) of the Act provides that subject to s 114UB(2), each party bears their own costs. As discussed with him at the costs hearing, the solicitor-advocate is not a party to the proceedings and thereby does not attract the 'benefit' of that primary position. Most of the sub-subsections in (3) concern the parties, but the introduction to the subsection does not and (g) provides the Court can have regard to anything it thinks relevant.
5. Rule 12.15(1)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") sets out the Court may make a costs order against a lawyer who has, relevantly, caused costs to be incurred by a party or to be thrown away because of, inter alia, improper or unreasonable conduct. Rule 12.15(4) provides that an order under r 12.15(1) may include an order that the lawyer:

(a) not charge the lawyer's client for work specified in the order; or

(b) repay money that the client has already paid towards those costs; or

...

(d) pay the costs of a party; or

...

1. Rule 12.16(1) relevantly requires that before making a costs order against a lawyer, the Court must give the lawyer a reasonable opportunity to be heard.
2. I conclude that is plainly satisfied in this matter - the oral application was made on 12 January 2026, the applicant's material was due and filed on 13 January 2026 and a hearing set down for 19 January 2026 for the solicitor-advocate to be heard. The solicitor-advocate did not cavil with that time frame, process or raise any difficulties with the opportunity to be heard afforded to him.

Liability for costs accepted, but on what basis?

1. The solicitor-advocate accepted personal responsibility for the costs thrown away arising from the hearing, which was adjourned on 12 January 2026, and for the show cause and costs hearing on 19 January 2026.
2. Counsel for the applicant helpfully particularised how costs were calculated on indemnity and standard scale bases. The applicant's primary position was that costs be awarded on an indemnity basis being $16,189.05. Standard was his fall back, being $11,617.51.
3. The applicant's solicitor filed an affidavit which, inter alia, annexed his firm's and Counsel's Costs Agreements.[19]
4. The solicitor-advocate did not, ultimately, take issue with any of the particulars of the work performed or the hours involved as set out in the applicant's submissions at paragraphs 24 and 26. Having regard to the applicant's submissions, I am satisfied the particulars of the relevant works performed were reasonable as were the hours worked on each task.
5. The only issue in dispute was whether the costs ought be awarded on an indemnity or standard basis.
6. The applicant's Counsel submitted, commencing at paragraph 2(c) of his written submissions:[20]
   1. The conduct of the First Respondent's solicitor is the sole cause of the adjournment and consequent costs thrown away (noting that the Applicant opposed an adjournment) for the following reasons:

i. By:

• Filing a Supplementary Case Outline that was misleading in a multitude of respects (some nine (9) fictitious authorities, an [sic] fictitious quote from Bevan and Bevan, and incorrect factual summations from Jonah and White and Ferraro and Ferraro);
• Then being dishonest to the Court and opposing counsel about doing so; and
• Thereafter admitting the dishonesty only when it was exposed by the Court,

the First Respondent's solicitor put his client in an unnecessary and inevitable predicament of an adjournment to avoid the unconscionable detriment of either representing herself (when she is Malaysian) or suffering the prejudice of her solicitor continuing when his integrity, credibility and reliability had been seriously impugned.

1. That Supplementary Case Outline was neither sought from, nor ordered by, the Court or opposing Counsel, and was unnecessary.
2. The First Respondent's solicitor also listed in his Supplementary Case Outline, as a document to be relied upon, an affidavit of himself containing matters of substance such that he put himself in an inevitable position of conflict of interest, further compromising his ability to continue representing the First Respondent in any event. The Applicant's solicitor gave him ample warning about this issue before trial, and prepared Objections specifically about it, foreshadowing an application for indemnity costs. If the First Respondent's solicitor maintains his new position that he would not rely upon that Affidavit at the trial, despite indicating in his initial Case Outline that he would, such Objections have been prepared in vain, an expense which should not fall at the feet of the Applicant at all.

...

1. This was not a mere error of judgment on the part of the solicitor. The use of generative AI without reviewing its veracity, accuracy and/or relevance was grossly negligent on the part of a senior practitioner. The subsequent initial cover-up, and putting his client in an invidious position by doing so and creating a conflict of interest, was deliberate, calculated, contumelious and a flagrant disregard of the Court's authority. The foreseeable effect of such conduct was to bring the legal profession into disrepute and diminish his client's and the public's confidence in the administration of justice.
2. In Levick v Deputy Commissioner of Taxation, the Full Court of the Federal Court approved the following passage:

"it is equally important to uphold the right of a court to order a solicitor to pay costs wasted by the solicitor's unreasonable conduct of a case. What constitutes unreasonable conduct must depend upon the circumstances of the case; no comprehensive definition is possible."

1. There is much force in those submissions.
2. As for indemnity costs the applicant's Counsel submitted:
   1. The threshold for indemnity costs is "some special or unusual feature in the case to justify the Court in departing from the ordinary practice".
   2. For the reasons stated above, there is a paucity of better examples justifying such a departure.
3. Again, there is much force in those submissions.
4. The solicitor-advocate was asked about indemnity or standard costs and submitted:

... standard is a reasonable reflection in the circumstances as per scale.

1. As the Full Court and now Appeal Division of this Court have said many times, indemnity cost orders should only be made in "exceptional" cases.[21] That said, the kind of conduct that may support costs on an indemnity basis are set out in the oft cited passage in Colgate Palmolive[22] at 233:

[24] ... it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud... evidence of particular misconduct that causes loss of time to the Court and to other parties ... or in wilful disregard of known facts or clearly established law... the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions... an imprudent refusal of an offer to compromise...

(emphasis added)

1. As ought be plain from these Reasons, I find the solicitor-advocate's conduct clearly falls within the example just cited, of "evidence of particular misconduct that causes loss of time to the court and to other parties". Both the applicant and respondents wanted the jurisdictional issue to be resolved. It was the solicitor-advocate's conduct before this Court, and his conduct alone, that caused the hearing to be adjourned. His conduct and the consequences thereof are a clear basis that the costs order be made on an indemnity basis and the Court will so order.
2. I cannot accept the solicitor-advocate's submission (extracted above) that costs on a standard basis are "a reasonable reflection in the circumstances". There was nothing "standard" about his conduct as an officer of the Court. This matter falls within the category of "exceptional" cases.
3. In so far as his own client is concerned, I will make Orders with respect to the first respondent in the terms of r 12.15(4)(a) and (b) of the Rules, being that she not pay for work specified in the Orders at the start of these Reasons, or, be repaid any such monies she has already paid for such work. The first respondent should not have to meet any costs of and incidental to the solicitor-advocate's improper words and actions.
4. The solicitor-advocate filed a Costs Notice (after being ordered to do so) on 13 January 2026, indicating he would not charge the client for relevant appearances and told the Court at the 19 January 2026 hearing that she had not paid any monies for same. I will nevertheless make the r 12.15(4)(a) and (b) Orders, for the sake of clarity and transparency for his client.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch.

[1] JML Rose Pty Ltd v Jorgensen (No 3) [2025] FCA 976 at [99].

[2] Mertz & Mertz (No 3) [2025] FedCFamC1A 222 ("Mertz & Mertz") at [12].

[3] Transcript 12 January 2026, p.8 line 19-39.

[4] Transcript 12 January 2026, p.9 line 20-33.

[5] As published by the Queensland Law Society and applicable in Queensland by notification under s 225(1) of the Legal Profession Act 2007 (Qld).

[8] Transcript 12 January 2026, p.13 line 43 to p.14 line 46.

[9] As said, it is an entirely separate issue for the Legal Services Commissioner what she makes of any of the solicitor-advocate's conduct within her regulatory framework.

[10] Affidavit of Ms Szep filed 11 October 2023 at paragraph 17.

[11] See this snapshot in the federal jurisdiction alone: Mertz & Mertz; Helmold & Mariya (No 2) [2025] FedCFamC1A 163 ("Helmold & Mariya (No 2)"); JML Rose Pty Ltd v Jorgensen (No 3) [2025] FCA 976; Murray on behalf of the Wamba Wemba Native Title Claim Group v State of Victoria [2025] FCA 731 ("Wamba Wemba"); Valu v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 95; (2025) 386 FLR 365; JNE24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1314; Dayal [2024] FedCFamC2F 1166; (2024) 386 FLR 359 ("Dayal"); Handa & Mallick [2024] FedCFamC2F 957.

[12] A copy of which was given to the solicitor-advocate at the initial hearing on 12 January 2026.

[13] [2025] FedCFamC1A 163.

[14] [2024] FedCFamC2F 1166; (2024) 386 FLR 359.

[15] Transcript 12 January 2026, p.8 line 37 to p.12 line 14.

[16] Transcript 12 January 2026, p.15 lines 1-11.

[17] Transcript 12 January 2026, p.17 line 35 to p.19 line 28.

[18] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 , per Kirby J at [38].

[19] Rule 12.13(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

[20] Applicant's Outline of Case (Costs Hearing) filed 13 January 2026.

[21] Withers & Russell (No 2) [2022] FedCFamC1A 197 at [13]; Kohan & Kohan [1992] FamCA 116; (1992) 112 FLR 151; Medlon & Medlon (No 6) (Indemnity Costs) [2015] FamCAFC 157; (2015) FLC 93-664; Galbadon & Galbadon [2015] FamCAFC 59; Limousin v Limousin (Costs) [2007] FamCA 1178; (2007) 38 Fam LR 478; and Badawi & Badawi (Costs) [2017] FamCAFC 196.

[22] Colgate Palmolive Co and Another v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225.