FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mertz & Mertz (No 2) [2024] FedCFamC1F 782
File number(s): ADC 2893 of 2023 Judgment of: BERMAN J Date of judgment: 19 November 2024 Catchwords: FAMILY LAW – PROPERTY – Interim orders – Consideration of the application of funds in various offset accounts towards various mortgages – Where the parties propose to retain the mortgage to ensure redraw facilities are available – Where there is no opposition by the husband – Where the wife provided a proposed Minute of Order – Where the husband was given the opportunity to forward a schedule of the revised balances in the various accounts – Where no schedule was received – Orders made in terms of the wife’s proposed Minute of Order.
FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Best interests of a child – Where two children live with the wife and one child lives with the husband – Where the husband seeks orders for the children to live with him – Where there is no evidence as to whether the children will be beneficially or adversely impacted by the husband’s proposal – Where the matter has a trial listing date – Where the Court declines to change the current arrangements prior to trial.
Cases cited: Mertz & Mertz [2024] FedCFamC1F 704 Division: Division 1 First Instance Number of paragraphs: 60 Date of hearing: 8 November 2024 Place: Adelaide Counsel for the Applicant: Mr LL 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:
15 NOVEMBER 2024
UPON NOTING THAT:
A.All applications for final orders are listed for final hearing on 7 April 2025 as a 5-7 day matter; and
B.Reasons for judgment will be delivered within twenty-one (21) days of this order.
THE COURT ORDERS THAT:
1.The Response to Application in a Proceeding filed by Mr Mertz (“the husband”) on 27 September 2024 be dismissed.
2.Z born 2012 (“Z”) attend such secondary school as the parties may agree but in the absence of agreement, within fourteen (14) days of the date of this order, the parties do all things necessary to cause and enable Z to be enrolled in Suburb HH High School to commence as and from the beginning of the 2025 academic year.
3.The husband do all things necessary to cause Ms Mertz’s (“the wife”) number to be unblocked from Z’s iPhone and to change Z’s privacy settings such that Z can not place his phone number on “No Caller ID”.
4.The wife’s Further Amended Application in a Proceeding filed 1 November 2024 be dismissed.
5.The parties do all such things and sign all…
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- AGLC
- Mertz & Mertz (No 2) [2024] FedCFamC1F 782
- Case
- [2024] FedCFamC1F 782
- Decision Date
CaseChat Overview and Summary
The court first addressed the financial orders proposed by the parties. Given that Mr Mertz did not oppose the wife's proposed Minute of Order and had the opportunity to provide a revised schedule of account balances but failed to do so, the court accepted the wife's proposed Minute of Order. The court detailed how the funds in the offset accounts should be applied to the mortgage balances and restrained both parties from drawing down on these accounts without joint consent or further court order. The court also made orders regarding the payment of rates, taxes, and other outgoings. Regarding the children, the court noted that there was no evidence to suggest that changing the current living arrangements would be in the children's best interests, and thus it declined to alter the arrangements prior to the trial.
The court dismissed the husband's application for final orders and the wife's further amended application in a proceeding. The court ordered that the child Z be enrolled in a specific high school and that the husband unblock the wife's number on Z's iPhone and change Z's privacy settings. The court also detailed specific payment instructions for mortgage accounts and outgoings, as well as the payment of health insurance and household expenses. The court made clear that the monthly loan repayments for a specific mortgage account would be the husband's responsibility.
The final orders include specific directives for the payment of school fees, mortgage balances, health insurance, and household expenses, as well as restraining the parties from drawing down on certain accounts without consent. The court also mandated that certain children's living arrangements remain unchanged until further order. The form of the order is subject to entry in the court's records, and the reasons for judgment may be subject to review or variation in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
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:
15 NOVEMBER 2024
UPON NOTING THAT:
A. All applications for final orders are listed for final hearing on 7 April 2025 as a 5-7 day matter; and
B. Reasons for judgment will be delivered within twenty-one (21) days of this order.
THE COURT ORDERS THAT:
1. The Response to Application in a Proceeding filed by Mr Mertz (“the husband”) on 27 September 2024 be dismissed.
2. Z born 2012 (“Z”) attend such secondary school as the parties may agree but in the absence of agreement, within fourteen (14) days of the date of this order, the parties do all things necessary to cause and enable Z to be enrolled in Suburb HH High School to commence as and from the beginning of the 2025 academic year.
3. The husband do all things necessary to cause Ms Mertz’s (“the wife”) number to be unblocked from Z’s iPhone and to change Z’s privacy settings such that Z can not place his phone number on “No Caller ID”.
4. The wife’s Further Amended Application in a Proceeding filed 1 November 2024 be dismissed.
5. The parties do all such things and sign all such documents as may be necessary to pay out the balance on the CBA Mortgage account ending #...02 currently registered over DD Street, Suburb Q in the state of South Australia (“the Suburb Q property”) in the following manner:
(a) The funds from the CBA Offset account ending #...97 are to be applied to the balance of the CBA Mortgage account ending #...02 such that the remaining outstanding balance is not less than one dollar ($1);
(b) The balance of funds in the CBA Offset account ending #...97 are be paid to the wife and transferred to her nominated bank account;
(c) The parties be restrained and an injunction granted restraining each of them from drawing down on the CBA Mortgage account ending #...02 without either the joint written consent of the parties or further order of the Court; and
(d) The wife pay all rates, taxes and other outgoings of and incidental to the Suburb Q property.
6. The parties do all such things and sign all such documents as may be necessary to pay to the CBA Mortgage account ending #15 currently registered over CC Street, Suburb F in the State of South Australia (“the Suburb F property”) in the following manner:
(a) Funds from the CBA Offset account ending #...62 to be applied to the balance of the CBA Mortgage with Loan account ending #...45 such that the remaining balance is one dollar ($1).
7. The parties be restrained and an injunction granted restraining each of them from depleting the remaining balance in the CBA Mortgage Offset account ending #...62 and Commonwealth Bank Everyday Offset account ending #...82 without either the written consent of both parties or further order of the Court.
8. The husband do pay all rates, taxes and other outgoings including but not limited to gas, water, energy fees and charges and he shall indemnify the wife in relation to same until such time as the parties agree in writing or as a result of a further order being made.
9. From the balance of funds transferred from the CBA Offset account ending #...97 transferred to the wife’s nominated bank account, the wife shall sign all such documents as may be necessary to pay the Health Insurance Policy on a family basis on the same table level as currently exists for a minimum period of six (6) months from the date of this order.
10. Within fourteen (14) days, the husband do all things required to register the household outgoings for the Suburb F property including gas, water, energy expenses in his sole name and shall indemnify the wife in respect of same.
11. Until further order, the monthly loan repayments pertaining to the CBA Mortgage account ending #...53 registered over the Suburb F property are to be paid by the husband.
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
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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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