Mertz & Mertz (No 2)

Mertz & Mertz (No 2) involved a dispute between the parents of three children regarding the children's living arrangements and contact with each parent. The case was heard in the Federal Circuit and Family Court of Australia, Division 2. The primary legal issues the court had to decide included the children's views and wishes, the potential harm from any changes to their living arrangements, and whether either parent was incapable of providing for the children's needs.

The court found that the eldest child, Z, had expressed a resolute view to not live with the mother and had taken steps to act on this view, which warranted significant weight. The court concluded that separating the children would risk alignment with one parent and was contrary to expert recommendations. However, it was noted that the interim orders aligned with the expert's longer-term recommendation for the children to reside together once the youngest child started high school. The court also determined that neither parent was incapable of providing for the children's needs, despite the mother's attempts to portray the father as irresponsible.

The court discharged all previous orders and made interim orders for the two younger children, X and Y, to live with the mother and spend specific times with the father. The eldest child, Z, was to live with the father and spend time with the mother as per his wishes. Special provisions were made for school holidays and special occasions to ensure the children spend time with both parents. Communication between the parents and the children was to be facilitated through specified means and times, and both parents were required to engage in individual and co-parenting counselling. The court also restrained the parents from various actions that could harm the children and appointed an Independent Children’s Lawyer to represent the children's interests.

The court concluded that the orders were in the best interests of the children and did not present an unacceptable risk to them, despite some inconsistencies with an existing intervention order. The form of the order was subject to entry in the Court's records, with provisions for potential review or variation.