Mertz & Mertz (No 3)

Case [2025] FedCFamC1F 144

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Mertz & Mertz (No 3) [2025] FedCFamC1F 144

File number(s): ADC 2893 of 2023
Judgment of: BERMAN J
Date of judgment: 7 March 2025
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Where the respondent seeks leave to issue subpoenas for medical and employment records of the applicant – Where the applicant objects to the subpoenas on the grounds of relevance and fishing – Where the respondent has previously raised concerns about the applicant’s mental health – Leave to issue refused in relation to the applicant’s employment records and some of the applicant’s medical records – Leave to issue granted in relation to the remainder of the applicant’s medical records and clinical psychology notes with applicant to have first right of inspection and seven days to file an objection.
Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.33, 6.38.
Cases cited:

Andrew Garrett Wine Resorts & Anor v National Australia Bank Limited (No. 6) (2005) 92 SASR 419,

Dupont & Chief Commissioner of Police and Anor (2015) FLC 93-648,

Hatton v Attorney-General of the Commonwealth of Australia & Ors (2000) FLC 93-038,

Hennessy v Wright (No. 2) (1980) 24 QBD 225,

Lucas Industries Ltd v Hewittand Others (1978) 18 ALR 555,

Macks v Tucker & Ors & QBE Insurance (Australia) Ltd (No. 4) [2007] SASC 255,

Martin & Martin and Anor (No.2) [2014] FamCA 232,

Mertz & Mertz [2024] FedCFamC1F 704,

National Employers’ Mutual General Association Limited v Waind and Hill [1978] 1 NSWLR 372,

Papadopoulos & Papadopoulos (No. 2) [2007] FamCA 1683,

Ryder & Lee [2009] FamCA 531,

Unitingcare – Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476,

Woley & Humboldt (No. 4) [2009] FamCA 546.
Division: Division 1 First Instance
Number of paragraphs: 61
Date of hearing: 28 February 2025
Place: Adelaide
Counsel for the Applicant: Mr A. Hay
Solicitor for the Applicant: Purdie Legal
Counsel for the Respondent: Ms T. Lewis SC
Solicitor for the Respondent: Norman Waterhouse Lawyers
Counsel for the Independent Children's Lawyer: Mr S. Frazer
Solicitor for the Independent Children's Lawyer: Ryder Family Law

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:

7 MARCH 2025

THE COURT ORDERS THAT:

1.Leave is refused for the issue of the following subpoenas:

(a)To Ms NN, of MM Health Services Town OO in respect of the medical records of the husband; and

(b)To PP Pty Ltd in respect of employment records of the husband from mid-2023.

2.Leave is granted for the issue of the following subpoenas:

(a)To QQ Health Service in relation to the medical records of the husband; and

(b)To Dr RR of SS Psychology in respect of the clinical notes of the husband;

PROVIDED THAT for a period of seven…

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Mertz & Mertz (No 3) [2025] FedCFamC1F 144
Case
[2025] FedCFamC1F 144
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CaseChat Overview and Summary

In the matter of Mertz & Mertz (No 3), the Federal Circuit and Family Court of Australia (Division 1) was tasked with resolving a dispute concerning the issuance of subpoenas for medical and employment records. Ms Mertz, the respondent, sought leave to subpoena certain records of her ex-husband, Mr Mertz, the applicant, in the context of their ongoing family law proceedings. The respondent's application was based on previous concerns about the applicant's mental health, which she sought to substantiate through these records. Mr Mertz opposed the subpoenas, arguing they were irrelevant and amounted to fishing expeditions, thus unnecessarily infringing on his privacy and rights.

The court had to determine whether the subpoenas for the applicant's medical and employment records were justified under the circumstances. Specifically, it had to assess whether the records were relevant to the issues in dispute and whether the subpoenas were proportionate and necessary. The court also needed to balance the respondent's need for information against the applicant's right to privacy and the potential for harassment or oppression.

In its judgment, the court found that while the respondent's concerns about the applicant's mental health were valid, the subpoenas were not sufficiently justified to warrant their issuance. The subpoena to the health service provider, MM Health Services, was refused as the records were deemed irrelevant to the current proceedings. Similarly, the subpoena to the applicant's employer, PP Pty Ltd, for employment records from mid-2023 was also refused, as the records were not pertinent to the issues at hand. However, the court granted leave for the issuance of subpoenas to QQ Health Service for the applicant's medical records and to Dr RR of SS Psychology for the clinical psychology notes, subject to certain conditions. The applicant was to have the first right of inspection of these documents for seven days, and could file an objection during this period, after which the respondent would have the right to inspect and copy the documents.

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:

7 MARCH 2025

THE COURT ORDERS THAT:

1. Leave is refused for the issue of the following subpoenas:

(a) To Ms NN, of MM Health Services Town OO in respect of the medical records of the husband; and

(b) To PP Pty Ltd in respect of employment records of the husband from mid-2023.

2. Leave is granted for the issue of the following subpoenas:

(a) To QQ Health Service in relation to the medical records of the husband; and

(b) To Dr RR of SS Psychology in respect of the clinical notes of the husband;

PROVIDED THAT for a period of seven (7) days following the production of documents pursuant to the subpoenas, only the husband and his legal representative are permitted to inspect and copy and unless an objection is filed, thereafter the wife will have a right to inspect and copy documents produced.

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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