Mertz & Mertz (No 3)
[2024] FedCFamC2F 716
•6 June 2024
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 (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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These are unusual proceedings, which require the resolution of one primary issue, which can be easily stated in the following terms:
Should the court restrain a solicitor from acting for a party in family law proceedings, before it, in order to protect the integrity of the judicial process overall?
There can be no doubting that the court has such discretion, but it is one to be utilised sparingly and carefully, for at the same time, it is a very significant thing indeed to deprive a person of the legal practitioner of his/her preference.
Necessarily, if the court interferes with lawyers who can and cannot act for a person on a willy-nilly basis, such interference may not, of itself, be conducive to the proper administration of justice. Both such issues arise because of the well-known but fundamental principle that justice must not only be done, but must also be seen to be done.[1]
[1] See Rex v Sussex Justices [1924] 1 KB 256.
The factual matrix in which the issue arises can also be easily stated. In highly adversarial and acerbic family law litigation, a close family member of the impugned lawyer has provided child-minding services to her client, to which the other party has taken exception. Particularly in circumstances in which it is asserted there has been a lack of candour about the issue.
In the context of a brief interlocutory hearing, the court must determine whether, on the one hand, this was an error of judgment, by the lawyer concerned, the implications of which can be contained or, on the other hand, it has contaminated the proceedings to such a degree that there is no alternative but to ban the solicitor from any further involvement in the case because to do otherwise would shake the public’s confidence in how justice is administered.
The latter alternative has its own likely adverse consequences. The party who is deprived of the lawyer of his preference will be bitter and significantly, for him, there will be a likely concomitant increase in the costs of these proceedings to be borne by him and possibly a further level of delay, which will prejudice both him and the other party.
Inevitably, whatever is the outcome of the case, there will most likely be an increase in the level of hostility between the parties concerned, which cannot be helpful to their children or empower them to work through the emotionally potent issues this case has precipitated and solve them in a consensual and child focused manner.
The test to be applied is an objective one, referenced to informed community standards. In broad terms, it can be expressed as follows:
Whether a fair-minded, reasonably informed member of the public might conclude that the proper administration of justice requires that a solicitor be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice.[2]
[2] See Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 at [39] per Griffiths J.
In the absence of a jury, it falls to me to perform the role of such a fair-minded, reasonably informed member of the public. The use of the word might in the test is significant. Might is a modal or subjunctive verb, used to express a possibility that something could occur not that it definitely will. Necessarily, it is not such a powerful or determinative word as would.
BACKGROUND
The parties to the proceedings are Mr Mertz (“the husband”) and Ms Mertz ("the wife”). They are the parents of three children, Z born in 2012; X born in 2015; and Y born in 2016.
The parties began their relationship in 2006 and married in 2011. There is no controversy that the date of their final separation was in September of 2022, initially under the one roof, until the following February, when the wife left the former family home in Suburb F and moved to the nearby suburb of Suburb Q, with the three children, to an investment property which the parties own.
The wife is a professional. The husband is a professional who works in the media. He has also previously worked at promoting community health.
In the past, he has been employed as a public servant and community worker. He moved into the media about a decade ago and has hitherto been focussed on his career. As a result, he attends many events on weekends. He is very busy.
As a consequence, there is no great controversy that up until separation, the wife provided significantly more of the care which the children needed, including organising their various extramural activities, whilst the husband was the family’s main breadwinner.
After separation, the husband has aspired to assume a greater role in parenting the children. He asserts that with the end of the marriage, the emphases in his life have changed. The wife greets this with cynicism and doubts its authenticity.
She believes that the husband seeks only to control and bully her and is subject to all manner of issues, which represent a threat to the emotional and physical integrity of the children. The underpinning of her case is that the husband’s newfound interest in providing care for the children is feigned and he only wishes to do so in order to thwart and coerce her. In broad terms, this is the context in which this difficult and controversial case arises.
Following separation, all three children lived in the mother’s primary care until late 2023, when the oldest child, Z moved to live with his father, in controversial circumstances.
To date, the proceedings have focussed primarily on parenting arrangements for the three children. However, recently on 26 March 2024, the wife has commenced property proceedings, to which the husband has not as yet formally responded to.
Collateral with the current proceedings, the wife has recently commenced proceedings (in late 2023) in the Magistrates’ Court seeking a final family violence order against the husband. For his part, the husband doubts the probity of the application and believes it has been brought for tactical or ulterior motives on the wife’s part.
As a result, he is contesting these proceedings but, in the interim, an order has been made restraining the husband from assaulting, threatening, harassing or intimidating the wife or from coming within 30 metres of her.
Given the husband’s profile in the media, the nature of his work, in the context of the general public’s abhorrence for family violence, notwithstanding provisions in both the Family Law Act 1975 and the state-based intervention orders legislation,[3] which prevent the public dissemination of the result of such proceedings, the outcome of this application has enormous potential significance for him in financial and reputational terms.
[3] See Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 33.
It is the husband’s case that the wife has threatened him that she will destroy him in court. This adds a further level of complexity to the case. As noted, the husband disputes the bona fides of the wife’s application in this regard. Axiomatically, given these circumstances, it is inevitable that the proceedings have been marked by an extreme level of acrimony and suspicion between the parties concerned.
Regrettably, it is necessary to summarise the lengthy and involved proceedings which have brought the parties to their current position in the litigation, which is, it would seem, some distance from a final adjudication. The case has been characterised by many interim applications; lengthy affidavits; numerous subpoenae; and several forms of collateral investigations, including forensic psychiatric reports and drug tests.
The husband commenced the current proceedings on 29 June 2023, less than a year ago. In broad terms, he sought both interlocutory and final parenting orders, which would have seen him spending substantial and significant periods of time, with the children, culminating in what is commonly called an equal time arrangement.
The mother responded to this application on 2 August 2023. On a final basis, she sought orders that the three children concerned live with her but, in this context, did not have any explicit proposal for them to spend time with their father, until the way forward was explored in a detailed Family Report, which she sought be prepared.
In the interim, on the basis of the various concerns, delineated in her supporting affidavit, she proposed that the children spend only brief periods of time, on each Tuesday and Thursday afternoons, with their father, as well as on alternate weekends from 8.00am Saturday until 4.00pm Sunday.
This time was to be subject to the condition that the father personally care for the children during these periods and not take the children to any of his weekend work commitments. Accordingly, from the outset of the case, issues to do with the supervision of the children was a matter of centrality to the wife and, as will be detailed, arose in the context of her concerns that the father was an unstable and un-insightful parent.
The wife was highly critical of the husband on a number of bases, which included that he had used illicit substances and was alcohol dependent; had behaved in a coercive and controlling manner towards her; had poorly diagnosed and treated but significant mental health issues; and had hitherto provided only sporadic care for the children concerned; being more focussed on progressing his career in the media, which had taken him away from the family home for long periods leaving her to be the children’s main source of physical and emotional succour.
Essentially, she portrayed him as an unpredictable and self-absorbed person and, as such, by necessary implication, protective concerns should be at the forefront of the court’s deliberations in determining what parenting arrangements would best serve the children’s interests, in both the short and longer term.
In response, the husband denied the gravamen of the wife’s allegations against him asserting that they had been made to limit his time with the children and damage his reputation. Essentially, he portrayed the wife as being herself an emotionally labile person, with a hot temper, who was intent on controlling him through the children.
From his perspective, the conditions sought by the wife, on his time with the children, in the parameters which she sought, namely that he be present at all times, was emblematic of the wife’s desire to control him and limit his time with the children to satisfy her own emotional needs. Whilst at the same time being an implicit attempt to de-rail his well remunerated employment, which hitherto had provided the family with a comfortable lifestyle.
It is also important to note that there had been earlier controversies involving parenting arrangements for the parties’ oldest child Z. It is the husband’s position that the wife and Z have a fractured and volatile relationship and Ms Mertz has roughly handled the child and sworn at him in the past, causing the child to suffer panic attacks. Behaviour to which Y and X have been exposed to, to their psychological detriment.
It seems axiomatic that the final period of the parties’ relationship was deeply unhappy and was characterised by conflict between them, leading to brief periods of separation. The parties disagree about who of them was the major instigator of this conflict. However, undoubtedly, the children must have been aware of it, and it seems to have had an adverse effect on Z particularly.
In late December 2022, he apparently suffered a panic attack, during an argument between his parents. Police were summoned to the home and Z was taken to hospital by ambulance. Z personally called the police to the home a few days later in response to another fight between his parents.
Ultimately, in these emotionally charged and controversial circumstances, in mid-September of 2023, it was ordered that Ms C, a clinical psychologist, prepare a Family Assessment Report, which was to be released to the parties prior to an interim hearing, which was then scheduled to take place before a Senior Judicial Registrar of the court on 19 December 2023. The aim of such a hearing being to put in place a temporary or provisional response to manage the crisis in the family, which was capable of reversal, and prepare the matter for a final determination.
Prior to Ms C’s involvement in the matter, it seems to be the case that the parties found it difficult to agree upon an expert acceptable to each of them. It is my experience, that this is not an uncommon phenomenon in highly conflicted cases, such as the present one.
On 3 August 2023, prior to the interim hearing, and the release of the Family Assessment Report, the parties sensibly were themselves able to agree on a holding pattern regime of care, for the children. This was in light of it being anticipated there would be more evidence available, at the scheduled interim hearing in which at that time was scheduled for late October, however due to what appears to be controversies about the identity of the report writer, this was adjourned to 19 December 2023.
Pursuant to this regime, the children continued to live predominantly with their mother and spend time with their father for a short period, from after school on each Tuesday and Thursday, as well as on alternate weekends from after school on Friday until 4.00pm the following Sunday.
In this context, the husband agreed to the conditions stipulated by the wife that he would personally care for the children during these periods and would not take them to any of his weekend work commitments.
These interim orders did not proceed without controversy. On 28 August 2023, the wife filed an Application in a Proceeding, which sought the imposition of some form of supervision on the father’s time with the children.
The proposed supervisors were, I understand, family friends/relatives and the rationale for such supervision was the wife’s assertion that she feared that the husband’s mental health had dramatically and rapidly deteriorated and, as a consequence, the children were at risk in his care without some responsible person being present.
In this context, she also sought that a forensic psychiatric assessment be undertaken in respect of the husband. At this stage, the wife also expressed concerns about Mr Mertz’s utilisation of his sister, Ms H, to provide care for the child on the basis that she also had long-standing mental health issues.
The husband responded to this application on 25 September 2023. By this time, after having engaged two previous firms of solicitors, Mr Mertz engaged his current solicitor, Ms G of R Lawyers.
Ms Mertz has been represented by the same firm of solicitors throughout, namely T Lawyers. In this context, as earlier noted, Ms Mertz herself is a professional. As I understand matters, at one stage of her career, her current solicitor and she worked at the same firm.
It also needs to be pointed out at that, in the early stages of her career, Ms Mertz, prior to her marriage, was employed by this court. In this context, I knew Ms Mertz. I was informed by Ms J, who appeared on Ms Mertz’s behalf at an earlier hearing of this matter, that her client had no objection to me personally adjudicating this issue between the parties. It was my understanding that this was a position shared by the husband.
In his response, the husband sought additional time with the children, during both the school term and school holiday periods. Significantly, he sought the compulsory referral of the mother, to her treating general medical practitioner, in order that she could obtain a referral to a psychologist for treatment in respect of her mental health, pursuant to a Mental Health Care Plan.
At an earlier stage of proceedings, the husband had been directed to provide a hair follicle sample in order to ascertain whether he was utilising illicit drugs. This sample was examined in August of 2023 and returned negative for illicit substances, other than oxycodone, which is a synthetic opiate. Mr Mertz provided evidence that he had been medically prescribed this drug to deal with the pain occasioned by a medical episode.
On 30 October 2023, Ms G filed an affidavit to which was attached the forensic psychiatric assessment of her client. This indicated that Mr Mertz had a long history of depression and low self-esteem, which had been treated by anti-depressants. Mr Mertz reported to the psychiatrist concerned that his mood had improved since his separation from the wife.
In this context, the following diagnosis was provided:
…it is my clinical opinion, based upon a reasonable degree of medical probability that [Mr Mertz] was suffering from a Chronic Adjustment Disorder with depressed mood over a number of years. In the middle of 2023 he probably was suffering from an Adjustment Disorder with depressed and anxious mood. He is not currently reporting sufficient psychiatric symptoms to warrant a psychiatric diagnosis. Alcohol appears to have previously caused some problems for him but his alcohol use has probably fallen short of meeting the diagnostic criteria for an alcohol related psychiatric disorder. His [illicit substance] use has fallen short of meeting the diagnostic criteria for a substance-related psychiatric disorder.
[Mr Mertz] is probably not suffering from a Personality Disorder. I do note however he has a long history of low self-esteem…[4]
[4] See affidavit of Ms G filed 30 October 2023 at page 42.
In the lead up to the interim hearing, which as noted was scheduled for 19 December 2023, a further significant crisis, concerning Z, overtook the family, which necessarily had the consequence of exacerbating the already unacceptably high tensions and controversies between the parties.
On 27 November 2023, Z apparently lost his smart watch whilst riding his bicycle in a park near to his mother’s home. Given the watch is subject to the technical miracle of GPS, it was easily recovered by the mother and Z in tandem.
It is Ms Mertz’s evidence that she mildly rebuked Z for not taking care of his property, which caused the child to become verbally abusive towards her. To the Family Assessment Report writer, Ms C, Z provided an alternative version, which was characterised by the child being critical of his mother’s behaviour towards him, which he characterised as unnecessary and excessive yelling.
Regardless of where the truth lies (and it is impossible for me to determine precisely) Z took things into his own hands and clandestinely contacted his father, via an intermediary, and thereafter Mr Mertz collected him. Z has remained in his father’s primary care in the period since. In these circumstances, the wife’s application was for a recovery order in respect of Z, if necessary, via the agency of the police.
It is the husband’s position that the incident of 27 November 2023 triggered Z to suffer a further panic attack. As a result, he asserted, in his answering material, that the mother’s conduct represented an emotional threat, not only to Z, but also to Y and X and was escalating in its intensity. In these circumstances, he sought interim orders that all three children live with him.
Those advising the wife also sought additional expert evidence as to whether it was possible for Mr Mertz to have corrupted the earlier hair follicle test, in some way or alternatively there was some probability that the legitimate medical prescription of oxycodone was not related to the positive sample.
The Family Assessment Report was released to the parties the day before the interim hearing. For obvious reasons, it is an extremely important document, as Ms C has a significant advantage over me (and indeed any other judicial officers involved in this case) because she has physically met each of the children concerned and observed them interact with both of their parents. I will never meet Z, Y and X, yet the court is charged with making significant decisions regarding their care.
However, at the same time, it must also be noted that Ms C’s report, and the methodology, which informs it, has not been subject to any detailed scrutiny through any process of cross-examination. Almost certainly, this will occur, as now appears inevitable that the case must proceed to final hearing.
In addition, notwithstanding the very many affidavits, filed by each of the parties in the proceedings so far, it is impossible for the court to resolve the very many evidentiary controversies, which arise between them, in the context of a truncated hearing, against a background of a protracted period of family crisis. Again, the truth or otherwise, of each parties’ assertions about the other, including any shades of grey, which may exist between such polarity, remain matters for determination at final hearing.
On its face, Ms C’s report is a detailed one of some 314 paragraphs, contained within 54 pages. Ms C interviewed the parties on three separate occasions and interviewed Z and X twice and Y once. As noted above, she also observed the children interacting with each of their parents.
Each of the parties relies on observations made by Ms C, in her report, to either emphasise (the wife’s case) or diminish (the father’s case) the significance of Ms G’s son Mr K being involved in providing care for Z, X and Y, which as noted above, is the issue with which I am currently seized.
Clearly, the issue of the father’s work commitments, and its implications for his ability to care for the children, was a topic discussed by each of the parties with Ms C, although from their highly polarised perspectives.
Mr Mertz reported that he had modified his hours and commitments to ensure that he was able to care for the children. He acknowledged that he had, in the past, been absent from many of their extra-mural activities, but since separation had experienced something of an epiphany in this regard and had made significant changes in his life to be able to care for the children more. He further asserted that his various employers had agreed to these changes.
On the other hand, Ms Mertz expressed some incredulity about these issues and asserted that the husband would remain significantly reliant on his sister and niece, particularly in the evenings, to provide care for the children.
Ms C described all three children as being comfortable and relaxed in their father’s care and he in turn being able to manage their competing demands in a positive manner. With their mother, Ms C observed the children to be physically affectionate. As such, there were no concerns about Ms Mertz’s interaction with the children, who were again described as being comfortable and settled in her care and responsive to her management of them.
It was evident to Ms C – an issue which does not appear to be in dispute – that the wife was the primary carer for the children, prior to separation, whilst the husband had been in the throes of establishing his career and maintaining their financial security, as its main breadwinner.
On separation, these circumstances had changed, with the husband becoming more physically present in the children’s lives, which the wife had interpreted as being unnecessarily intrusive. This seemed to Ms C to be one of the sources of the unacceptably high level of conflict in their parenting relationship.
As previously noted, each of the parties has asserted that the other has behaved in a verbally and physically aggressive way towards the other. In her interview with the children, Ms C attempted to examine their perception of this issue. In this context, Ms C reported as follows:
[W]hilst the issue of family violence remained a matter for the Court to assess, the writer noted that based on the descriptions of the children, it appeared that when there had been parental conflict, [Ms Mertz] was allegedly often louder and more reactive whereas [Mr Mertz] was calmer and chose to disengage.[5]
[5] See Family Assessment Report of Ms C dated 18 December 2023 at [291].
In my view, more significantly, Ms C reported her concerns at her assessment that it appeared indisputable that all three children had been exposed to the significant conflict between their parents and this necessarily had placed them at risk of suffering emotional harm. Ms C reported as follows:
Regardless of the Court's determinations about family violence, of note to the writer was that the children had been directly exposed to multiple incidents of parental conflict and this had adversely impacted upon their emotional wellbeing. Of particular concern was that on one occasion, [Z] had been forced to call the Police to settle his parents' dispute, and on another occasion, [Z] had been admitted to hospital due to his distressed state. From the children's perspective, [Z], [X] and [Y] should never had been exposed to [Mr Mertz] and [Ms Mertz's] conflict and it remained highly concerning that both parties had placed their children at risk of emotional and physical harm.[6]
[6] See Family Assessment Report of Ms C dated 18 December 2023 at [293].
It was also Ms C’s opinion that the parties had differing approaches to the responsibilities of being a parent and engaged with their children in a dissimilar manner – with the wife being more consistent in setting more boundaries and maintaining routines; whilst Mr Mertz was more relaxed in his parenting.
Again, this dichotomy is not unfamiliar in high conflict cases, which are often characterised by different approaches to the responsibilities incumbent on being a parent. Indeed, in some families, these differences are sometimes viewed as being complimentary.
In general terms, Ms C was not critical of either such approach, however, in a high conflict parental situation, such as the present, this dichotomy created its own dilemma, which Ms C described as follows:
[W]hilst neither parenting style was considered inappropriate, the writer recognised that the distinct differences between the two parenting styles can be difficult for children to navigate and can lead to situations whereby children start to align with one parent to help manage the polarising family dynamic.[7]
[7] See Family Assessment Report of Ms C dated 18 December 2023 at [296].
Clearly, in this context, the current alignment of Z, with his father, against his mother, was and remains an issue of significant concern. Ms C opined that this had arisen in the context of the parents’ competing parenting styles.
Given Z’s reported concerns, not only to her but also a number of health professionals, Ms C did not favour the child’s immediate return to his mother’s care but advocated Z beginning to recommence spending time with his mother, in an environment which he perceived to be safe, whilst remaining in the short to medium term in his father’s care.
Necessarily, it was the wife’s position that Mr Mertz was not the innocent actor portrayed by him in respect of the events, which brought Z into his care. I can understand why this would be so, given the adversarial nature of the proceedings, up until this stage. However, from my perspective, it is impossible for the court to make any concluded findings in respect of this matter and indeed, it may well be the case that there were many complicated and conflicted factors at play in this regard.
All things considered; Ms C recommended as follows:
·Although the wife had been the children’s primary carer throughout their lives and this had been undermined since separation by the husband’s increased presence in the children’s lives, it was nonetheless clear to her that all three children needed the opportunity to develop a relationship with each of their parents;
·From what the children said to her, it was clear to Ms C that the children each wanted to increase their time with their father. Necessarily, given past and current arrangements, this would need to occur on a graduated basis to minimise disruption to their care;
·Perhaps axiomatically, it was Ms C’s view that the children would benefit from having parents who could communicate about their children’s needs in a non-conflictual manner. This is likely to be wishful thinking at the present time;
·The ongoing level of conflict between the parties was unacceptable and distracting the parents from their proper role in working together to parent their children appropriately. The conflict was causing the children distress and placed their emotional and psychological development in jeopardy leading to likely poor long-term outcomes.[8]
[8] See Family Assessment Report of Ms C dated 18 December 2023 at [307]-[312].
In all these circumstances, Ms C recommended that Z initially continue to live with his father but spend some limited time with his mother, moving in time to overnight periods. X and Y should continue to live with their mother and spend time with their father on increasing periods of time, including overnight time, during weekends and school holidays. She did not make any explicit recommendation that the time needed to be supervised or that Mr Mertz needed to be physically present at all times.
Ms C also made a number of specific references, which included family therapy for the children and co-parenting counselling for the parties. Significantly, from Mr Mertz’s perspective in the context of the current controversy regarding Ms G, she recommended as follows:
During either parent’s care of the children, they be allowed to rely upon the use of supports to help them with the care of the children, provided that the parent is present for the majority of their time with the children.[9]
[9] See Family Assessment Report of Ms C dated 18 December 2023 at [314].
The dilemma facing the Senior Judicial Registrar, charged with determining the parties’ competing interim applications on 19 December 2023, largely centred on Z. On the one hand, should the child remain in the care of his father, would this inevitably lead to his relationship with his mother being irreversibly damaged, to his long-term detriment; on the other hand, in order to repair this relationship, did the court need to take dramatic action, rather than the cautious and incremental approach advocated by Ms C and secure his immediate return to his mother.
In this context, the Senior Judicial Registrar closely analysed the evidence available to her and recorded some concerns regarding the father’s past behaviour. In these circumstances, she determined that Z should return immediately to his mother’s care and, if he did not do so, a recovery order should issue.
Influential, in this decision, was Mr Mertz’s own evidence that he had anticipated Z being in his care, only for a relatively short period of time, as a circuit breaker. She was also concerned at the separation of the child from his younger siblings and for the potential for his relationship, with his mother, to deteriorate, noting that as at the date of the interim hearing, Z had not seen his mother since 27 November 2023.
The husband was dissatisfied with this outcome and, as was his entitlement, sought a review of it, which was ultimately listed before Judge Mansfield on 17 January 2024, with judgment being delivered the following day.[10] In the meantime, the husband had filed an application seeking a stay of the Senior Judicial Registrar’s order and deposed two affidavits in support detailing other matters, which had occurred on 22 and 25 December 2023.
[10] See Mertz & Mertz (No 2) [2024] FedCFamC2F 53.
Mr Mertz deposed that he had attempted to facilitate the orders of 21 December 2023, but each time Z had run away from his mother’s home and returned to his premises. He asserted that it was his impression that Z remained traumatised by what had occurred between his mother in the latter part of 2023. Most recently, Z had decamped from his mother’s home on Christmas Day after telling his mother that he was scared of her and requesting her to apologise to him.
Needless to say, the wife has a different perspective on what had occurred. She asserts that the husband is, in effect, a law unto himself and, when X and Y have spent time with him, they have returned to her care exhaustive, dysregulated, thirsty, hungry and dirty. Ms Mertz confirmed that she had successfully applied for an interim family violence order, against the husband, which was issued by the Magistrates Court in December 2023.
Accordingly, an escalating and intensifying atmosphere of crisis, enveloping the family, confronted Judge Mansfield, when he was called upon to deal with the de novo, or fresh hearing, constituted by Mr Mertz’s review application.
At this stage, the husband sought that all three children live with him; X and Y spend time with their mother for five nights per fortnight, on a 3/2 configuration; with Z to spend time, with his mother, in accordance with his wishes. On the other hand, the wife sought the dismissal of the review and stay applications and that the orders of 21 December 2023 do continue, and in the event, Z was not delivered into her care, a recovery order issue.
Colouring these proceedings was the fact that the family violence order proceedings were listed for pre-trial conference, in February 2024 and issues were engaged regarding what documents from this court should be released to the Magistrate in those proceedings, given the fact that the family law documents were subject to what lawyers describe as a Harman undertaking.
On the basis of the evidence available to him, Judge Mansfield found that each of the children had a meaningful level of relationship with their parents. He doubted that the evidence then available supported the wife’s contention that the rift between Z and her had been engineered by Mr Mertz. Concurrently with that finding, Judge Mansfield considered that concerns had been identified that Ms Mertz herself was currently not well placed or inclined to support the children having an appropriate level of relationship, with their father, but rather was intent on achieving some form of superiority, over the husband, in this regard.
In this context, Judge Mansfield considered that there were grave psychological risks, arising for Z, if he was physically compelled to move out of his father’s care. In general terms, he found that the father had demonstrated a commitment to the children maintaining a relationship with the mother, the same could not be said of the mother, who appeared to be focussed on a contest with the father, in respect of the children.[11]
[11] See Mertz & Mertz(No 2) [2024] FedCFamC2F 53.at [55].
Although Judge Mansfield found that both parents had the capacity to provide the needs of the children concerned, he was of the view that, in tandem, they had significant deficits in respect of managing conflict which is an immediate and acute problem in this case.[12] This concern seems to have been more potent in the judge’s mind so far as the mother was concerned.
[12] See Mertz & Mertz (No 2) [2024] FedCFamC2F 53 at [67].
Of some significance, in the context of the current matter, Judge Mansfield found as follows:
I do not make the order sought by the mother seeking to prevent the father’s use of “supports” to help care for the children. Substantial and significant time includes involvement in school and work routines and in occasions and events that are of particular significance to the children and the parent. The children enjoy positive relationships with both sides of their family. I see no benefit to the children in an order to the effect of locking the father and the children down and other people out.[13]
[13] See Mertz & Mertz (No 2) [2024] FedCFamC2F 53 at [83].
In these circumstances, Judge Mansfield made interim orders that saw X and Y continuing to live with their mother but spending four overnight periods, with their father, on a fortnightly basis, in a 3/1 configuration.
So far as Z was concerned, he was to continue to live with his father and spend time with his mother, in accordance with his wishes or as otherwise agreed between the parties in writing. Explicit orders were made in respect of handovers directed towards the parties not coming into direct contact with one another in order to minimise the prospect of further conflict arising between them.
In addition, extensive orders were made restraining the parties from engaging in anti-social behaviour or physically discipling or verbally abusing the children. No explicit orders were made in respect of who could or could not care for the children. Orders were also made for the parties to have co-parenting counselling and for Z to engage in formal reunification therapy.
Significantly, an Independent Children’s Lawyer was appointed, over the objection of the wife. The Independent Children's Lawyer is Ms W, an experienced family lawyer. Ms W is to be regarded as a party of equal importance to the parents concerned.
Pursuant to the provisions of section 68LA of the Act, she is under a statutory duty to examine all the relevant evidence available in the case and then advocate the outcome, to the court, which she believes will best serve the interests of the children, whom she represents.
In his judgment, which is a lengthy and considered one, Judge Mansfield considered that he had made more findings than would usually occur in the context of an interim hearing and formed a more defined impression of the dynamic of the family concerned than he ordinarily would. No doubt, this was as a consequence of the lengthy report from Ms C, to which I have already alluded.
In general terms, Judge Mansfield did not form a favourable impression of the wife, which appears to be in contrast to the view of the Senior Judicial Registrar. In this context, I note that the crisis relating to Z had become more pronounced in the period after the orders of 21 December 2023 had been made.
I am neither Judge Mansfield nor the Senior Judicial Registrar. It is not my function to review either of their determinations and, in this context, I note that the orders of Judge Mansfield have not been subject to appeal. However, in my view, the determinations made by him are relevant to put the current application in context.
It seems an inescapable conclusion that Ms Mertz would have been anything other than gravely disappointed with the decision of Judge Mansfield and is likely to be of the view that it is erroneous in many of its salient aspects. Necessarily, this is also likely to further drive the conflict between the parties, which inevitably must play out in the litigation between them.
THE CURRENT APPLICATIONS
In his judgment, Judge Mansfield dealt with issues relating to the use of documents prepared for this court in the Magistrates Court in relation to the wife’s application for a family violence order. He authorised the use of Ms C’s report and his reasons for judgment in those proceedings.
On 9 April 2024, the wife’s solicitor filed an Application in a Proceeding seeking to be able to use a further 50 documents, from this court, including some subpoenaed materials, in those proceedings, including the reasons of the Senior Judicial Registrar, who had made orders consistent with Ms Mertz’s position on 21 December of last year.
As the proceedings in the Magistrates Court were imminent, she sought the urgent listing of her application and it came before me, on 15 April 2024. I am not currently dealing with this aspect of the proceedings, as it has been overtaken by other events, which relate to the actions of Ms G and her son Mr K.
There is no doubt that each of the documents specified by Ms Mertz, in her application, are subject to an implied undertaking, applicable to both parties, that they would be utilised by the parties concerned only in the family law proceedings, for which they had either been prepared or obtained, and not for any other purpose.
Such an undertaking is commonly referred to as a Harman undertaking following the English case of Harman v Secretary of State for the Home Department.[14]It is equally applicable in Australia. In Hearne v Street, the High Court described the principle underlying the undertaking as follow:
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.[15]
[14] See Harman v Secretary of State for the Home Department [1983] 1 AC 280.
[15] See Hearne v Street [2008] HCA 36 at [96].
Mr Mertz responded to the application relating to the Harman undertaking issue on 14 April 2024 and opposed the release of a variety of documents, which related to him personally and had been obtained by means of subpoena directed towards, amongst others, his medical practitioner, psychologist and employer. In this context, he deposed as follows:
[I] wish to set out my feelings about the release of private information about me which has been obtained by subpoena issued in this Court. I hold reasonable concerns that the mother may not abide orders of the court or legal obligations about the restricted use of information about me. The mother has, on more than one occasion already, been in breach of the legal requirement upon her that she not disseminate information identifying me, and she has done so in the course of denigrating me in respect of the FCFCOA proceedings. As much has been evidenced by more than one person, on separate occasions, having approached me and purported to speak with me about these FCFCOA proceedings, in a derogatory manner. The mother and her lawyers are aware of one of these occasions, which was a very public occasion, and about which the mother has sought an assurance from me, via her lawyers, that I will not pursue defamation proceedings against her. I have no confidence at all that the mother would act with the confidentiality required about what is personal information relating to me, not created by me, not tested, and with no assurance that it constitutes a complete record.[16]
[16] See affidavit of Mr Mertz filed 14 April 2024 at [25].
On the morning of the day designated for the hearing (15 April 2024) of the Harman application, the wife filed an application and supporting affidavit setting out the various reasons why Ms G should be restrained from continuing to act for Mr Mertz. The application seeks orders, which can be summarised as follows:
·The application be listed for urgent interim hearing on 15 April 2024 and the requirements for service be abridged;
·The father’s solicitors be restrained from acting further for Mr Mertz in relation to these proceedings;
·The husband be restrained and an injunction granted restraining him from permitting Mr F and Ms L[17] from caring for, supervising, communicating with or coming into contact with the children concerned in this case; and
·The husband pay the mother’s costs of this application.
[17] Hereinafter referred to as “[Mr K]” and “[Ms L]” respectively.
The parties were each represented by Senior Counsel on 15 April 2024. For obvious reasons, the husband had not been in a position to respond to the application beforehand. Necessarily, the issue of representation had to be determined prior to any adjudication of the Harman issues. In these circumstances, directions were made for the husband to file answering documents and the matter was listed before me on 27 May 2024.
The wife’s evidence
The wife asserts that it has been her understanding throughout the proceedings to date that it was the husband’s case that he had suggested, either directly or impliedly, both to her and the court (and indeed to Ms C, who had duly reported the fact) that the only individuals who would be involved in providing care to the children were his sister, Ms H, and her daughter (his niece), Ms M. As a consequence, he had misled her and the court, when he utilised Mr K to care for the children.
This state of her understanding was said to arise from the case document presented on his behalf at the review hearing and what he had said to Ms C in the process of the Family Assessment Report being compiled. By necessary implication, it is her case that if she had considered the husband’s case was predicated on any other basis, she would have vigorously resisted it and therefore it is impliedly unfair that she was not told that Mr Mertz had any other plans in this regard.
On or about 2 February 2024, after the orders of Judge Mansfield had been made, it is the mother’s case that Y disclosed to her that he had been cared for, in the father’s household, by a male person, whose name was Mr K. Mr K had also been involved in delivering the children to school and had taken Y to sports training.
In these circumstances, Ms Mertz consulted her solicitor, Ms Tilmouth and ultimately instructed her to canvass the issue with Ms G. Although I have been provided with voluminous correspondence passing between the various solicitors concerned, I do not think I have been given this first piece of correspondence.
In any event, it does not appear to be greatly controversial that information was sought regarding the identity of any individuals assisting the husband with caring for the children in a professional capacity, such as was entailed in the services of a nanny or au pair, as well as those who were assisting on an unpaid basis. Disclosure was also sought in respect of the curriculum vitae and police check status of any such paid person, who was providing care for the children. Correspondence was apparently sent on or about 20 February 2024.
It is the wife’s evidence that no immediate response was received to this correspondence, but Ms G forwarded another letter dealing with other issues. In these circumstances, on 22 February 2024, a follow up letter was sent requesting a response to the specific issues earlier raised. This letter precipitated the following response, on 22 February 2024:
I confirm that you have sought particulars of all aspects of the manner in which my client attends to the care of the children, which I am instructed includes (on an as needed basis) the use of extended family members and close friends, casual babysitters and families of the children's peers and friends. I am instructed that there is certainly no "nanny or au pair" arrangement in place at all.
The detail your client seeks is oppressive and she does so in an environment in which her parents are regularly attending my client's home and the children's school for the purposes of monitoring my client's movements. Details of which will be brought to the attention of Magistrate [...] in relation to the mother's private intervention order application...
It is apparent that your client seeks this information for a purpose other than a genuine enquiry about the day to day affairs of the children in my clients household.
The father does not consent to being surveilled by the mother or her agent(s) in this manner and I am not instructed to engage further in respect of this topic.[18]
[18] See affidavit of Ms Mertz filed 15 April 2024 at [22].
On 8 April 2024, Ms Mertz has deposed that she was informed by the children that a female called Ms L took X to the movies and that Ms L is Mr K’s sister. In addition, since around February 2024, the children had made reference to a black dog coming into the father’s household, when they are there, which is returned to its owner, when they leave.
From a more recent affidavit deposed by Ms Mertz on 24 May 2024, it would seem to be the case that her curiosity was sparked by these references and this in turn caused her to do an internet search of Ms G, which led to images of her with her children and the dog. This evidence was provided to refute the husband’s assertion that she had left her application to the last minute for tactical reasons.
In this context, on 10 April 2024, Ms Tilmouth wrote to Ms G, in a three-page letter, advising that her client had reason to believe that her son Mr K had been caring for the children on a regular basis; her daughter Ms L had also provided care and had taken X to a movie; and she had placed her dog in the father’s household.
On 11 April 2024, Ms G wrote to Ms Tilmouth in the following terms:
The father attends at the children's school most afternoons to pick up [Z]. The father continues to have flexibility with his work - some mornings he [works] from home and other mornings he uses family and friends to help with the care of the children.
The father makes all the arrangements in relation to the care of the children.
[Ms L] has not been involved in the care of or babysitting of any of the children.
[Mr K] is one of the babysitters used whilst the father is at work. [Mr K] is a fully qualified [community] worker and also works at [N School]. He has the relevant police and working with children clearances. [Mr K] is completing his [tertiary qualification].
The mother is aware that the father's closest friends are the [O family] and [P family]. These families regularly assist with the care of the children as needed. The children have known these families all their lives.
……
The father knew that his solicitor needed to find another home for her dog. He volunteered to have the dog for a trial period to see how it would go with the children.[19]
[19] See affidavit of Ms Mertz filed 15 April 2024 at Annexure “[WM]2”.
Ms Mertz takes umbrage at her perception that Ms G has inserted members of her family into her (the wife’s) familial arrangements, without prior reference to her, whilst knowing that such an insertion would be resolutely resisted by her (Ms Mertz). Impliedly she suspects some form of ulterior motive on the part of either the husband or Ms G or indeed both of them.
In these circumstances, she alleges that Ms G has not discharged her obligation of candour to either her or the court, particularly in the context of her being privy to the preparation of Mr Mertz’s case, particularly before Judge Mansfield, that only his sister and niece would provide care for the children in his absence at work.
This is particularly significant given the main thrust of her case, since its instigation, is that Mr Mertz is not able to balance the competing demands of his onerous employment, with those of parenting children of the ages of the children concerned in this matter.
Further, it is apparent that at least Mr K is benefiting financially as a consequence of his mother’s professional relationship with Mr Mertz, and this is a clear conflict of interest.
In addition, she asserts that the familiar way in which the children refer to the husband’s solicitor, together with the informality occasioned by the introduction of her dog into the family situation, is fundamentally unprofessional and by necessary implication leads to a blurring of professional roles.
Finally, Mr K and/or Ms L may be privy to information, via their mother, which is relevant to these proceedings, which they may make available to either one or all of Z, X and Y. From the wife’s perspective, the only corrective to these perceptions is the removal of Ms G from further involvement in the proceedings.
The husband’s evidence
The husband responded to this application on 15 May 2024. He seeks the dismissal of the wife’s application and that she pay his costs in a fixed amount of $5,000.00 or alternatively, pursuant to scale, in an amount of $3,977.24.
In support, he has provided an 86 page affidavit of evidence and annexures, the majority of which is the voluminous correspondence, which has passed between the parties’ solicitors, during the period between February 2024 and May of 2024.
Mr Mertz deposes that he views the wife’s application as essentially an attempt to exert her control over him, particularly in the context of him having to work to earn his living. Underpinning his position is what he regards as the specific imprimatur of Judge Mansfield that the best interests of the children concerned in this case did not require the locking down of the father with the children and the exclusion of other people being involved with them.
In this context, he also relies on Ms C’s specific recommendation that both parents be allowed to rely on external supports, in their respective care of the children, provided that each of them was present for the majority of the time. In these circumstances, it is Mr Mertz’s evidence that he is indeed present for the majority of time, whilst continuing to work, but he also relies on a variety of sources to assist him. These include his sister and niece, family friends and Mr K.
At this juncture, I am not in a position to resolve the truth or otherwise of the assertions that Mr Mertz has been, continues to be and, in the future, will remain substantially present, during the time children are in his care, notwithstanding his employment obligations. Necessarily, it is the underpinning of the wife’s case that she does not accept this. That is her prerogative and, if necessary, will be resolved by the court, at final hearing.
In resolving this issue, each of the parties will be entitled to call evidence from any or all of the individuals named in Mr Mertz’s affidavit, including Mr K. There is no prohibition on those advising Ms Mertz against approaching Mr K to ask him questions about the issues arising in this case. Whether Mr K chooses to answer those questions, is a matter for him. However, clearly he remains a compellable witness. He can be subject to subpoena, in this regard.
In his affidavit, Mr Mertz describes Mr K as a 22-year-old, who is studying tertiary education at university, who works as an community worker at N School. It is the implication of his description of Mr K that his (Mr K’s) involvement with the children has been entirely anodyne in nature.
Mr Mertz further deposed that Ms L is indeed the daughter of his solicitor but has never cared for the children. I have not been advised of her age. Further, Mr Mertz has deposed that Ms G herself has never, at any time, been involved in providing any care for the children.
In this context, Mr Mertz has not (and nor has Ms G herself) provided any evidence as to how the particular arrangement involving Ms K came into being and what is the level of his remuneration. It is the wife’s case that this is a significant omission in the husband’s case and is indicative of something malign or underhand.
It is the overall effect of the husband’s affidavit of 15 May 2024, that he perceives the nature of the litigation, which the wife and those advising her have mounted against him, to be oppressive and designed to intimidate him, by both their content and frequency. As such he feels both overborne and oppressed.
Specifically, he asserts that the wife’s various applications are largely characterised by complaints of compromised behaviour, on his part, which he has thus far successfully refuted by the provision of a hair follicle test (which those advising the wife sought to challenge); the production of his medical records; and an independent psychiatric examination.
In addition, he asserts that his position in the proceedings and the manner in which he has portrayed the parties’ co-parenting relationship, has to some extent, been vindicated by the professional and independent assessment of Ms C, albeit that her evidence has not as yet been subject to scrutiny at a final hearing stage.
In all these circumstances, it is the effect of Mr Mertz’s evidence that he has felt overwhelmed and bullied by the wife’s unduly aggressive mode of conducting this litigation but has thus far been able to keep his end up, largely through the efforts of his solicitor, whom he trusts.
He is particularly thankful to Ms G that she was able to secure agreement to the engagement of Ms C to provide the Family Assessment Report after a controversy had arisen between the parties about the person earlier agreed upon to provide the report. This has led to a delay which he found irksome, but which Ms G’s efforts ameliorated.
In these circumstances, it is the implication of his evidence that it is fundamental to any conception of objective fairness that he be represented by the solicitor in whom he has complete and utter confidence. He has such a degree of confidence in Ms G, and it remains intact notwithstanding the subsequent criticism of her, in these proceedings, by Ms Mertz, which is vindicated have the potential to expose him to costs.
At the same time, he is cognisant of the need to act prudently in respect of the further potential incurring of legal costs. Necessarily for him to have to instruct another solicitor, who will have to come to terms with the huge amount of material in the case, will be oppressively expensive for him.
In addition, even in cases were parental responsibly has been allocated, pursuant to section 61DAB, parents (or other relevant persons) do not have to consult on matters which are not concerned with long term issues, when the child is spending time with one or the other of them.
This is to ensure that the myriad of decisions, which have no long-term significance concerning a child and which need to be made on a day-to-day basis, such as those relating to food and clothing, by both of the child’s parents, can be made without interference and with autonomy. In my view, this would extend to child-minding.
The issue of the capacity of Mr Mertz to provide adequate care to Z, X and Y was thoroughly canvassed by both Ms C and before Judge Mansfield. As noted, there is no specific requirement that requires Mr Mertz to be present at all times, when the children are in his care or prevent him from seeking external sources of care.
Ms U submits that Mr Mertz is in some way bound by the contents of submissions made prior to the review hearing before Judge Mansfield from engaging a person, such as Mr K, to assist in providing care to the children because he would be utilising his sister and niece in this respect. As a necessary corollary of this, it is submitted that Ms G was subject to an obligation to provide information in respect of the departure from this position to those advising Ms Mertz.
I do not agree. For a start the extent of Mr K’s involvement in the provision of care is controversial. Secondly, the involvement of Mr K occurred after the determination in the review hearing and the position of the wife, in respect of the matter, was not accepted by the judge concerned. In these circumstances, Mr Mertz cannot be bound by anything said on his behalf.
Thirdly, the issue remains a live one, about which the parties have different views and in which allegation has met counter-allegation, within the context of the central controversy regarding Mr Mertz’s overall level of parental capacity. This will be resolved at trial. Essentially the court will be called upon to determine whether the best interests of the children will be compromised because of Mr Mertz’s work commitments.
Before Judge Mansfield, the wife asserted that these interests were jeopardised; the husband asserted otherwise; and a decision made, which was not subject to appeal. In my view, the relevant lay person would conclude that both parties were entitled to move on and make the arrangements each sought appropriate, independent of the other. It seems more probable than not the parties will make different submissions and different evidence, in respect of this topic, at trial.
It might be said that it would have been prudent and courteous for Ms G and Mr Mertz to have informed Ms Mertz of the utilisation of external sources of care, other than the sister and niece, for the children. I acknowledge that such disclosure would have been in keeping with the overall ethos of family law parenting, but I do not regard it as mandatory given the nature of the orders made in this case.
In these circumstances, although it may be the conclusion of the fair-minded, reasonably informed member of the public that the issue could have been better handled, and even the involvement of Mr K in the family affairs of one of her clients was an error of judgment on Ms G’s part. I however do not think her failure to disclose the issue would be of sufficient moment to persuade such an observer that justice has not been done between the parties or its appearance of having been done, had been compromised to such a degree that Ms G must be removed from the case.
Other considerations
As already noted, it is a significant feature of the administration of justice that each individual litigant is free to retain the legal practitioner of his/her preference. The public has an interest in ensuring that this entitlement is maintaining in appropriate cases and is not one which is to be easily dismissed.
In Geelong School Supplies Pty Ltd v Dean[37] Young J said as follows:
It must also be borne in mind that the court’s jurisdiction is an exceptional one; it is to be exercised with appropriate caution and due weight must be given to the public interest in a litigant not being deprived of the solicitor of its choice without due cause.
[37] Geelong School Supplies Pty Ltd v Dean (2006) 237 ALR 612 at [35].
I am satisfied that Mr Mertz has complete confidence in Ms G and has no wish to dispense with her services. Indeed, it seems more probable than not, that he would greet such an outcome with disapprobation on the basis that it was very unfair to him. In my view this is a significant issue, which weigh heavily in favour of not granting the application.
In addition, it seems highly probable that if Ms G is disqualified from acting, Mr Mertz will be put to significant expense in having to engage fresh lawyers, particularly given the time the matter has been on foot and the number of documents and applications it has produced. When these matters are considered by reference to the court’s overarching purpose, in my view, they vastly outweigh any concerns a lay observer might hold arising from Ms G continued involvement in the matter.[38]
[38] See Garwood & Shipton (No 8) [2024] FedCFamC1F 208 at [76].
Finally, in my view, even if the test was satisfied by the concerns which, to utilise Tree J’s phraseology, may nonetheless hover around, Ms G’s continued involvement in the proceedings, on other significant factors also weighs against exercising the discretion in the matter, namely Mr K is no-longer involved with the family. Albeit begrudgingly, Mr Mertz has agreed that Mr K will no-longer come into contact with the children. Accordingly, Mr K’s on-going involvement cannot represent any current threat to the integrity of these proceedings.
CONCLUSIONS
For all these reasons I have come to the conclusion that the discretion conferred upon me to restrain Ms G from continuing to act in the case should not be exercised. These reasons can be summarised as follows:
·Although a fair-minded, reasonably informed member of the public might have characterised Ms G’s actions as a serious error of judgment on her part, given the acrimonious nature of the litigation between the parties, and have had serious reservations about her conduct as a result, this alone does not threaten the public confidence in the administration of justice;
·Ms G is not subject to a conflict of interest, on financial grounds, because her son Mr K received some form of payment from her client for performing child minding services;
·Ms G’s reason for remaining in the case is to secure payment of her fees as presently incurred and as will be accrued in the future. Necessarily, this is a legitimate reason for her wishing to remain in the case. It is not to salvage her own personal reputation or for any reason extraneous to the issues joined between the parties;
·The involvement of Mr K in Mr Mertz’s household has not provided him with any unfairly obtained tactical advantage in these proceedings;
·Ms G was under no obligation to inform Ms Mertz of the arrangements to which she was privy arising for care arrangements for the relevant children, when they were in her client’s care pursuant to court order;
·As such, Ms G has not misled the court;
·Even if doubt does hover over Ms G’s actions, it is outweighed to a marked degree to the adverse consequence for the public’s confidence in the administration of justice if the husband is to be deprived of the solicitor of his choice and put to further expense to obtain fresh lawyers, given the already onerous costs incurred in the proceedings to date; and
·The removal of Mr K from any further involvement with the family and the fact that such involvement was comparatively brief, has provided a proportionate remedy to any lapse of judgment, which might be ascribed to Ms G.
In these circumstances, the wife’s application must be dismissed.
COSTS
Pursuant to section 117(1) of the Family Law Act 1975, the ordinary rule, in family law proceedings, is that each party should bear his or her own costs. However, pursuant to section 117(2), if the court is of the opinion that there are circumstances that justify it in so doing, the court may make an order for costs as it considers just.
The power to make an order for costs, arising under section 117(2), is subject to a number of considerations which are delineated in section 117(2A). They include the following:
·the financial circumstances of each of the parties concerned;
·whether any of the parties to the proceedings was in receipt of a grant of legal aid;
·the conduct of the parties to the proceedings generally and in respect of procedural matters specifically;
·whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
·whether any party to the proceedings has been wholly unsuccessful in the relevant matter;
·whether an offer has been made to settle the proceedings, in writing; and
·any other matter the court considers relevant.
These proceedings have, from their instigation, been vigorously contested. That cannot be regarded as unusual in family law proceedings, centred as they are on care arrangements for the parties’ three children, whom they each love. As a result, the proceedings have generated their own emotional energy and precipitated an extreme level of suspicion regarding the motivation of the other party and those who represent them.
This level of suspicion poses its own risks and is not conducive to cool, level-headed thinking about the risks of any particular situation and the existence of other solutions, in lieu of judicial determination, to resolve them.
From the perspective of each of the parties, the issue which I have been called upon to resolve involved a matter of high principle, relating to the conduct of legal practitioners. I am not the Law Society, and it is not my role to determine whether there has been any breach of the relevant rules of conduct for a member of the legal profession in this state. Rather my role is the safeguard of public perceptions of how justice is administered in a particular and emotive area of the law.
The case presented to me was a zero-sum game. Given the nature of the issue one of the parties had to win and the other lose the case. As I said at the outset, in my view, it was a finely balanced case given the public controversy and interest in how vitriolic family law proceedings are to be managed and how reasonable members of the public are likely to perceive the actions of legal practitioners in them. Necessarily, there are perils in pushing these types of issues to their ultimate denouement. Brinkmanship is not without its risks.
I know little about the financial backing of the parties. But even if they are well-resourced financially, their combined costs, thus far, of around $550,000.00 are concerning. Clearly, this is not a legal aid matter.
In my view, the proceedings were not necessitated by the obvious failure of a party to abide by a court ruling. As noted, Judge Mansfield did not explicitly forbid the husband from seeking outside assistance to care for the children. Neither party can be regarded as a neophyte so far as legal matters are concerned.
The most significant matter is that the husband has been successful and the wife has not. This justifies an award of costs in his favour. If the court determines to make an order for costs, it has a wide discretion as to the calculation of such costs. Pursuant to rule 12.17 of the Rules, it may order costs in a specific amount or to be assessed on a designated basis, such as by reference to party/party; solicitor/client; or on an indemnity basis. It may also direct that costs be calculated pursuant to a methodology prescribed in a schedule – Schedule 3 – to the Rules.
In all these circumstances, I consider that an award of costs, at the lower end of the amount sought by the husband is a just and appropriate one. I will award costs against the wife in an amount of $3,000.00.
For all these reasons, the orders of the court will as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and sixty-four (264) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 6 June 2024
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