Mertz & Mertz

Case [2024] FedCFamC1F 704

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Mertz & Mertz [2024] FedCFamC1F 704

File number(s): ADC 2893 of 2023
Judgment of: BERMAN J
Date of judgment: 23 October 2024
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the parties are engaged in protracted and highly vexatious litigation – Where the wife seeks various orders in relation to disclosure, injunctions and the release of documents pursuant to the Harman undertaking – Where the husband agrees to the release of documents – Where the Court makes various orders in relation to disclosure in accordance with the Rules – Consideration of injunctions sought by the wife – Where the wife seeks the husband be restrained from enabling the children to use an e-scooter – Consideration of relevant state law and regulations – Orders made.
Legislation:

Family Law Act 1975 (Cth) ss 60CA, 60CC

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.03, 6.17, 6.25, 7.04

Motor Vehicles Act 1959 (SA)

Road Traffic Act 1961 (SA)

Road Traffic (Miscellaneous) Regulations 2014 (SA) r 64A

Road Traffic (Road Rules-Ancillary and Miscellaneous) provisions) Regulations 2014 (SA)

Cases cited:

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hearne v Street [2008] 235 CLR 125

Holpitt Pty Ltd v Varimu Pty Ltd & Ors [1991] FCA

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

Mertz & Mertz (No 2) [2024] FedCFamC2F 53

Mertz & Mertz (No 3) [2024] FedCFamC2F 716

Quick v Stoland Pty Ltd [1998] FCA 1200

Sapphire (SA) Pty Ltd (trading as River City Grain) V Barry Smith Grains Pty Ltd (in liq) [2011] NSWSC 1451

Division: Division 1 First Instance
Number of paragraphs: 133
Date of hearing: 8 October 2024
Place: Adelaide
Counsel for the Applicant: Mr AA
Solicitor for the Applicant: R Lawyers
Counsel for the Respondent: Ms U
Solicitor for the Respondent: T Lawyers
Counsel for the Independent Children's Lawyer: Mr BB
Solicitor for the Independent Children's Lawyer: V Lawyers

ORDERS

ADC 2893 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR MERTZ

Applicant
AND:

MS MERTZ

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

23 OCTOBER 2024

THE COURT ORDERS THAT:

1.Within twenty-eight (28) days of these orders, Mr Mertz (“the husband”) produce the documents as set out in paragraph 13 of the Amended Application in a Proceeding filed 2 October 2024 except as to subparagraphs 13.12, 13.16 and 13.22.

2.Within twenty-eight (28) days, the husband discover and, if requested, produce documents related to the engagement of a person or persons to care for the children or any of them.

3.The parties be restrained and an injunction granted restraining each of them from:

(a)Changing X and Y’s school without prior written consent of the other party;

(b)Cancelling any of the children’s registration with any secondary school; and

(c)Approaching or actively seeking to communicate with a child or children not in their present care.

4.The husband be restrained and injunction granted…

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AGLC
Mertz & Mertz [2024] FedCFamC1F 704
Case
[2024] FedCFamC1F 704
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 1) heard a case between Mr. Mertz and Ms. Mertz involving protracted and highly contentious litigation. The wife sought various orders concerning disclosure, injunctions, and the release of documents under the Harman undertaking. The husband agreed to release certain documents. The court was required to decide on the appropriate orders regarding disclosure in line with the Family Law Rules, and to consider the injunctions sought by the wife, particularly regarding the husband's allowance of the children to use an e-scooter.

The court examined the orders proposed by the Independent Children's Lawyer to better regulate the handover arrangements between the parties, particularly regarding their attendance at school or children's extra-curricular activities. The court noted the ongoing conflict between the parties and the need to shield the children from this conflict as much as possible. The court ordered the husband to produce specified documents within a set timeframe, with certain exceptions. It also mandated the discovery and production of documents related to the engagement of childcare. The court granted injunctions to restrain both parties from changing the children's school without prior consent, cancelling any of the children’s registrations with secondary schools, and approaching or actively seeking to communicate with children not in their present care. Furthermore, the court restrained the husband from allowing the children to ride an e-scooter in circumstances not permitted by state laws.

In conclusion, the court made orders that the children would spend alternate Christmas and Easter periods with each parent, starting in 2025, and dismissed certain paragraphs of the wife’s application. The form of the order is subject to entry in the court’s records, with the possibility of review or variation under the relevant rules.

Orders

Orders of the court

ADC 2893 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MERTZ

Applicant

AND:

MS MERTZ

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

23 OCTOBER 2024

THE COURT ORDERS THAT:

1. Within twenty-eight (28) days of these orders, Mr Mertz (“the husband”) produce the documents as set out in paragraph 13 of the Amended Application in a Proceeding filed 2 October 2024 except as to subparagraphs 13.12, 13.16 and 13.22.

2. Within twenty-eight (28) days, the husband discover and, if requested, produce documents related to the engagement of a person or persons to care for the children or any of them.

3. The parties be restrained and an injunction granted restraining each of them from:

(a) Changing X and Y’s school without prior written consent of the other party;

(b) Cancelling any of the children’s registration with any secondary school; and

(c) Approaching or actively seeking to communicate with a child or children not in their present care.

4. The husband be restrained and injunction granted restraining him from allowing each of the children to ride an e-scooter in circumstances that are not permitted by the relevant provisions of the Motor Vehicles Act 1959 (SA) and the Road Traffic Act 1961 (SA).

5. Paragraphs 5 and 6 of the Amended Application in a Proceeding filed 9 September 2024 be dismissed.

THE COURT FURTHER ORDERS BY CONSENT THAT:

6. The children spend time with the parties for Christmas as follows:

(a) In 2024 and each alternate year thereafter, with the wife from 1.00 pm on Christmas Eve until 1.00 pm on Christmas Day and with the husband from 1.00 pm on Christmas Day until 1.00 pm on Boxing Day; and

(b) In 2025 and each alternate year thereafter, with the husband from 1.00 pm on Christmas Eve until 1.00m on Christmas Day and with the wife from 1.00 pm on Christmas Day until 1.00 pm on Boxing Day.

7. The children spend time with the parties for Easter periods (irrespective of whether Easter shall fall during a school holiday period) as follows:

(a) In 2025 and each alternate year thereafter, with the wife from the conclusion of school on Easter Thursday (or 3.30 pm if a non-school day) until 10.00 am on Easter Sunday and with the husband on 10.00 am on Easter Sunday until 4.00 pm on Easter Monday; and

(b) In 2025 and each alternate year thereafter, with the husband from the conclusion of school on Easter Thursday (or 3.30 pm if a non-school day) until 10.00 am on Easter Sunday and with the wife on 10.00 am on Easter Sunday until 4.00 pm on Easter Monday.

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.

Background

Background to the litigation

Pursuant to orders made 18 January 2024, an Independent Children’s Lawyer (“ICL”) was appointed to separately represent the interests of the children. Counsel for the ICL submitted a draft Minute of Order that sets out orders which would better regulate the handover arrangements between the parties but in particular, concerning their attendance at school or the children’s extra-curricular activities together with injunctive orders that are intended to remove the children, as much as is possible, from the ongoing conflict of the parties.BACKGROUND The parties commenced a relationship in 2006, were married in 2011 and separated under the same roof in September 2022. It is conceded that the wife vacated the former matrimonial home situate at CC Street, Suburb F (“the [Suburb F] property”) in or about early 2023. Whilst the husband continues to remain in the Suburb F property, the wife and initially the three children took up residence in an investment property held by the parties at DD Street, Suburb Q (“the [Suburb Q] property”). The parties should be considered as high functioning. The husband works in media and the wife is a professional. At present, it appears that the husband is engaged in full‑time employment and subject to the vagaries of his ongoing employment contracts, he is able to command a significant salary. Consistent with her stated preference to supervise and attend to the needs of X and Y, the wife is employed on a part-time basis. Whilst not requiring an early determination, the husband contends that the wife has the ability to resume a higher level of employment even if she remains as the primary caregiver to the children or, should the Court make orders that would place primary care of the three children with him, then there is no reason why the wife should not resume full-time employment. It is likely that up until the time of separation, the parties adopted what might be considered a “traditional” role to the parenting of the children. Given the history of the husband’s career and employment it is a reasonable assessment that he fulfilled the role of the breadwinner whereas the wife provided primary care to the children. In late 2023 an incident occurred between Z and the wife which resulted in him deciding to live with the husband. Consequent of the recommendation in the Family Assessment Report of Ms C that Z remains living with the husband and spend time with the wife, the parties have engaged in ongoing conflict as to the parenting arrangements for Z. By orders made 18 January 2024, Z is to live with the husband and spend time with the wife in accordance with his wishes. The arrangements for Y and X are that they are to live with the wife and spend time with the husband as follows:(1)Each alternate Thursday from the conclusion of school (or 3:00pm if a non-school day) until the commencement of school Friday (or 3:00pm if a non-school day).(2)Each alternate Friday from the conclusion of school (or 3:00pm if a non-school day) until the commencement of school the following Monday (or 3:00pm if a non-school day.(3)At such other times as agreed between the parties and confirmed in writing.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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