Mertz & Mertz (No 3)

Case [2024] FedCFamC2F 716

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

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

File number: ADC 2893 of 2023
Judgment of: JUDGE BROWN
Date of judgment: 6 June 2024
Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Interlocutory application to restrain the husband’s solicitor from acting for him – where the parties have a high conflict co-parenting relationship – highly adversarial proceedings – where the husband’s solicitors adult son provided child minding services to the husband – potential conflict of interest – integrity of judicial system – entitlement to solicitor of choice – what might a fair-minded, reasonably informed member of the public conclude – balance of public interests considerations – inherent jurisdiction of the court – application dismissed with costs   
Legislation:

Family Law Act 1975 (Cth) ss 60CC, 61B, 61C, 61DAB, 68LA, 69ZN, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190

Federal Circuit & Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3, rr 12.06, 12.17

Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 33
Cases cited:

Charisteas & Charisteas [2022] FedCFamC1A 160

Garwood & Shipton (No 8) [2024] FedCFamC1F 208

Geelong School Supplies Pty Ltd v Dean (2006) 237 ALR 612

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

Hearne v Street [2008] HCA 36

Kallinicos v Hunt (2005) 64 NSWLR 561

Kooky Garments Ltd v Charlton [1994] 1 NZLR 587

Marvel & Marvel (No 2) [2010] FamCAFC 101

Mitchell v Burell [2008] NSWSC 772

Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475

Naczek & Dowler [2011] FamCAFC 179

Osferatu & Osferatu [2015] FamCAFC 177

Rex v Sussex Justices [1924] 1 KB 256

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

Zahawi & Rayne [2016] FamCAFC 90
Division: Division 2 Family Law
Number of paragraphs: 264
Date of hearing: 27 May 2024
Place: Adelaide
Counsel for the Applicant: Mr S
Solicitor for the Applicant: R Lawyers
Counsel for the Respondent: Ms U
Solicitor for the Respondent: T Lawyers
Solicitor for the Independent Children's Lawyer: V Lawyers

ORDERS

ADC 2893 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MR MERTZ

Applicant
AND:

MS MERTZ

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

6 JUNE 2024 

THE COURT ORDERS THAT:

1.The Application in a Proceeding filed by the Respondent on 15 April 2024 be dismissed.

2.The Respondent pay the Applicant’s costs fixed in the sum of THREE THOUSAND DOLLARS ($3,000.00).

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

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AGLC
Mertz & Mertz (No 3) [2024] FedCFamC2F 716
Case
[2024] FedCFamC2F 716
Decision Date

CaseChat Overview and Summary

In the matter of Mertz & Mertz (No 3), the Family Court of Australia addressed an interlocutory application filed by the respondent, seeking to restrain the husband's solicitor from continuing to act on his behalf. The parties involved in this matter have a contentious co-parenting relationship, marked by highly adversarial interactions. The husband’s solicitors' adult son had provided child minding services to the husband, raising concerns about a potential conflict of interest.

The primary legal issues the court had to consider involved the potential conflict of interest arising from the child minding services, the integrity of the judicial system, the husband’s right to choose his solicitor, and the balance between these considerations and the public interest in maintaining the integrity of the legal process. The court needed to determine whether the circumstances warranted restraining the solicitor from acting further.

In assessing the application, the court emphasised the importance of the integrity of the judicial system and the public's confidence in it. While acknowledging the potential conflict of interest, the court also recognised the husband's right to choose his legal representation. The court concluded that a fair-minded, reasonably informed member of the public would likely find the potential conflict to be minimal and not sufficiently compelling to override the husband's right to legal representation of his choice. Additionally, the court considered the balance of public interests, including the husband's right to legal representation, the potential for undermining the integrity of the judicial system, and the impact on the adversarial nature of family law proceedings. Ultimately, the court found that the application did not meet the necessary threshold to warrant restraining the solicitor, and dismissed the application with costs.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The Application in a Proceeding filed by the Respondent on 15 April 2024 be dismissed.

2. The Respondent pay the Applicant’s costs fixed in the sum of THREE THOUSAND DOLLARS ($3,000.00).

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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