FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mertz & Mertz (No 2) [2024] FedCFamC2F 53
File number(s): ADC 2893 of 2023 Judgment of: JUDGE MANSFIELD Date of judgment: 18 January 2024 Catchwords: FAMILY LAW – PARENTING – Review of a senior judicial registrar’s decision – Three children aged 11, 8 and 7 - Parents in high conflict - Where the registrar made orders for the children to live with the mother – Where the eldest child refuses to live with the mother and continues to return to the father – Where the mother seeks a recovery order – Where the father seeks a review of the totality of the registrar’s decision on an urgent basis –Where all previous parenting orders are discharged and interim orders made to protect the children from psychological and emotional harm. Legislation: Family Law Act 1975, ss 60B, 60CC, 60CC(2)(a), 60CC(3), 69ZN
Federal Circuit and Family Court of Australia Act 2021, s 256
Federal Circuit and Family Court of Australia (“Family Law”) Rules 2021, r 14.07
Cases cited: Amini v Clark [2023] FedCFamC1F 486
Banks & Banks (2015) FLC 93–637
Re K (1994) FLC 92-461; (1994) 17 Fam LR 537
Division: Division 2 Family Law Number of paragraphs: 96 Date of last submission/s: 17 January 2024 Date of hearing: 17 January 2024 Place: Canberra Counsel for Applicant: Ms J Abbey KC Solicitors for Applicant: Purdie Legal Counsel for Respondent: Ms T Lewis Solicitors for Respondent: Norman Waterhouse Lawyers ORDERS
ADC 2893 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MERTZ
Applicant
AND: MS MERTZ
Respondent
ORDER MADE BY:
JUDGE MANSFIELD
DATE OF ORDER:
18 JANUARY 2024
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1.All previous orders are discharged.
Living and time arrangements
2.The child X born in 2015, and the child Y born in 2016 are to live with the mother.
3.X and Y are to spend time with the father:
(a)On Thursday 18 January 2024 and each alternate Thursday thereafter 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).
(b)On Friday 26 January 2024 and each alternate Friday thereafter 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.
(c)At such other times as agreed between the parties and confirmed in writing.
4.The child Z born in 2012 is to live with the father: and
(a)Z is to spend time with the mother in accordance with his wishes; and
(b)At the times agreed between the parties and confirmed in writing.
5.Unless otherwise agreed and confirmed in writing, X and Y are to spend time with the parents for special occasions as follows:
Easter 2024
(a)With the mother from the conclusion of school on Easter Thursday (or 3:00pm if a non- school day) until 10:00am on Easter Sunday;
(b)With the father from 10:00am Easter Sunday until the commencement of school…
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- Mertz & Mertz (No 2) [2024] FedCFamC2F 53
- Case
- [2024] FedCFamC2F 53
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the previous parenting orders, which mandated the children to live with the mother, should be altered given the eldest child's refusal to comply. Furthermore, the court needed to consider the father's request to review the entirety of the registrar's decision, which included not only living arrangements but also time-sharing, communication between parents, and measures to protect the children from psychological and emotional harm.
Judge Mansfield, in reviewing the case, found that the existing arrangements were not in the best interests of the children, particularly the eldest who had steadfastly refused to live with the mother. The court discharged all previous orders and issued new interim orders, which included specific living arrangements for each child. The two younger children were to live with the mother, while the eldest child was to live with the father. The court also detailed specific time-sharing arrangements, communication protocols, and measures to ensure the children's safety and well-being. Additionally, the court mandated counselling and co-parenting sessions for the parents and appointed an Independent Children's Lawyer to represent the children's interests. The court noted the inconsistencies between the new orders and existing intervention orders but determined that the new orders were necessary to protect the children and did not pose an unacceptable risk to them.
The court's final orders ensured the children's living arrangements were adjusted to reflect their wishes and the unique dynamics of their situation, while also implementing measures to mitigate the high-conflict environment and protect the children from harm. These orders were designed to provide stability and support for the children during this challenging period of their parents' separation.
Orders
Orders of the court
ADC 2893 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR MERTZ
Applicant
AND:
MS MERTZ
Respondent
ORDER MADE BY:
JUDGE MANSFIELD
DATE OF ORDER:
18 JANUARY 2024
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1. All previous orders are discharged.
Living and time arrangements
2. The child X born in 2015, and the child Y born in 2016 are to live with the mother.
3. X and Y are to spend time with the father:
(a) On Thursday 18 January 2024 and each alternate Thursday thereafter 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).
(b) On Friday 26 January 2024 and each alternate Friday thereafter 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.
(c) At such other times as agreed between the parties and confirmed in writing.
4. The child Z born in 2012 is to live with the father: and
(a) Z is to spend time with the mother in accordance with his wishes; and
(b) At the times agreed between the parties and confirmed in writing.
5. Unless otherwise agreed and confirmed in writing, X and Y are to spend time with the parents for special occasions as follows:
Easter 2024
(a) With the mother from the conclusion of school on Easter Thursday (or 3:00pm if a non- school day) until 10:00am on Easter Sunday;
(b) With the father from 10:00am Easter Sunday until the commencement of school on Tuesday (or 8:00am if a non-school day);
Children’s Birthdays
(c) With the parent who does not have care of the children on each of their respective birthdays:
(i) in the event of a school day, from the conclusion of school until 4:30pm;
(ii) in the event of a non-school day, from 10:00am until 2:00pm;
For Mother’s Day
(d) With the mother from 4:00pm on the Saturday immediately preceding Mother’s Day until 4:00pm that day
For Father’s Day
(e) With the father from 4:00pm on the Saturday immediately preceding Father’s Day until 4:00pm that day.
Handoverst
6. All handovers that do not take place at the children’s school or extra-curricular activities take place at the mother’s home with the father to pull up to the kerb adjacent to the mother’s front door, remain in his vehicle and the mother to remain at the front door of her home at all times with the children passing from the vehicle to the home or vice versa SAVE AND EXCEPT that the father shall be permitted to exit his vehicle strictly for the purposes of removing the children’s bicycles and bags from his vehicle.
Electronic communications
7. Each parent is to facilitate video or telephone calls to the other parent on any reasonable request from any of the children when in their care.
8. Each parent is to facilitate video or telephone calls to the children’s siblings on any reasonable request from any of the children when in their care.
9. The mother is to facilitate X and Y having video or telephone calls initiated by the father every Monday and Wednesday between 7.00pm and 7.30pm when they are in her care.
10. The father is to facilitate X and Y having video or telephone calls initiated by the mother every Saturday between 7.00pm and 7.30pm when they are in his care.
11. For the purposes of Orders 10 and 11, the calls are to be made and facilitated as close to 7:00pm as possible and go for as long as X or Y wants them to go for within reason.
12. NOTING that Z has use of a mobile phone provided to him by the father, the father is to provide the mother with the service number for that device.
Communication between the parents
13. Except in the case of an emergency the parents are to communicate only using the Our Family Wizard application and it is noted both parents have registered and are doing that already.
Extracurricular activities
14. Both parents are to facilitate the children participating in their respective extra-curricular activities that they would ordinarily attend.
15. Unless otherwise agreed and confirmed in writing, the parents are restrained by injunction from attending at the children’s schooling or extracurricular activities or events when the activity or event is occurring outside of the time the child participating in the activity or event is not in their care pursuant to these orders.
16. The parent with whom the children are not spending time is not to attend school pick-up unless agreed between the parties.
17. On a case by case basis, the parents are to separately consult each child with respect to their respective views and wishes concerning their participation in extracurricular activities and are to confirm in writing their understanding of the children’s views and wishes to the other parent.
18. Without first complying with Order 17, the parents are:
(a) Not to unilaterally cancel any extant extracurricular activity that the child/ren is/are presently involved in;
(b) Not to enrol the child/ren in any new extracurricular activity that the child/ren is/are not presently involved in.
19. Notwithstanding Orders 17 and 18, by consent, both parents are to do all things to ensure Z is enrolled in B Sports Club.
Restraints
20. The parents are restrained and an injunction is hereby granted restraining them from:
(a) Collecting the children from school or any other locations save and except for in compliance with the time spending Orders or with the written consent of the other party;
(b) Attending at the other's home without the express written consent of the other save and except for in compliance with these Orders;
(c) Denigrating the other in the presence of the children or in the children's school grounds, discussing legal matters and having adult conversations with any of the children;
(d) Discussing these proceedings in the presence or hearing of the children or permitting any other person to do so;
(e) Consuming alcohol to excess and/or any illicit substance in the presence of any of the children or whilst they are in his or her care or prior to the children coming into their care;
(f) Posting images of any or all of the children on social media or permitting the use of their images or voices on social media, without the other party’s express consent;
(g) Communicating with the other party other than via the Our Family Wizard application except in the case of a genuine emergency;
(h) Physically disciplining or verbally abusing the children or from allowing any other person to do so.
Counselling
21. The parents are to do all acts and things:
(a) To enable Z to forthwith attend upon Ms D for individual counselling and for the purposes of reunification therapy between Z and the Mother with a report to be published with respect to the progress of same upon Z attending not less than four (4) sessions with Ms D.
(b) For the children to attend upon Ms D for psychological support and to communicate with Ms D at her discretion and to provide Ms D with a copy of Ms C’s Family Report, any Affidavits filed by the parties in these proceedings requested by Ms D and a copy of any written reasons for judgment on 18 January 2024.
22. Neither party is to be involved in/or participate in the children's therapeutic sessions unless otherwise directed by the treating psychologist.
23. Both parties are to follow the recommendations made by Ms D pertaining to the structure of each child's appointments.
24. The parties participate in co-parenting counselling with Ms E and the parties are permitted to provide to Ms E a copy of Ms C’s Family Report, any Affidavits filed by the parties in these proceedings requested by Ms E and a copy of any written reasons for judgment on 18 January 2024.
25. The parties are to share equally the costs of the child/ren’s engagement with Ms D and are to meet their own costs of their own engagements with Ms D and Ms E.
Independent Children’s Lawyer
26. Pursuant to section 68L of the Family Law Act 1975 (Cth) an Independent Children’s Lawyer be appointed to separately represent the interests of the children the subject of the proceedings and forthwith upon such appointment, the Independent Children’s Lawyer file a Notice of Address for Service.
27. That to facilitate the appointment of the Independent Children’s Lawyer, the parties’ respective solicitors forward all relevant documents to the Legal Services Commission of South Australia at ICL@lsc.sa.gov.au within seven days.
28. At the request of the ICL, the parties are to forthwith provide to the Independent Children’s Lawyer the names and addresses of any medical practitioners, counsellors or other professional people or agencies they have attended within the last twelve (12) months together with the names and addresses of all medical practitioners, schools, day care centres and/or agencies whom the children may have seen or attended in the last twelve (12) months and provide to the Independent Children’s Lawyer authorities for the release of information concerning themselves and the children from such person or agency.
Procedural
29. The Father is permitted to produce in proceedings before Court for an intervention order commenced privately by application of the mother, a copy of the Family Assessment Report published by Ms C on 18 December 2023 and a copy of any written reasons for judgment on 18 January 2024.
30. All extant interim applications are dismissed.
31. The matter remains adjourned in Chambers before a Senior Judicial Registrar on 9 February 2024.
THE COURT NOTES THAT:
A. Orders 6 and 20(b) of these orders, which provide for the father to attend the mother’s home for the purposes of changeover or with express written consent of the mother, are inconsistent with the interim Intervention Order made by the Court in late 2023 which prohibits the father from going or staying within 30 metres of the mother or her residence.
B. Orders 13 and 20(g) of these orders, which provide for the parties to communicate only by Our Family Wizard except in the case of an emergency, are inconsistent with the interim Intervention Order which state that the parties need only utilise Our Family Wizard for discussion of facilitating access to the children and to exchange information about their welfare.
C. Pursuant to s68Q of the Family Law Act 1975, to the extent of these inconsistencies, these family law orders prevail.
D. The Court is satisfied that the orders made today are in the best interests of the children in circumstances in which the mother is protected by the interim Intervention Order.
E. The Court is satisfied the orders present no unacceptable risk to the children.
F. The Court will provide a copy of these orders to the Registrar of the Court, the Commissioner of SA Police, and the Chief Executive of the South Australian Department for Child Protection (the DCP).
AND IT IS FURTHER NOTED THAT:
G. Order 8 of the interim Intervention Order dated late 2023 states that the father must not follow or keep the mother under surveillance including tracking by GPS or otherwise. These orders are inconsistent with that order to the extent that no similar order restraining the father has been made by this Court because: it was not deemed appropriate or necessary with respect to the father, and; locating a child’s mobile phone may be beneficial to the parents’ care of a child.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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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