Mertz & Mertz [2025] FedCFamC1A 167 (11 September 2025)

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 the pseudonym Mertz & Mertz has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons explain the grant of an application made by the respondent to adjourn the appeal hearing, presently listed before the Full Court seven weeks hence.

1. On 23 June 2025, a judge of the Federal Circuit and Family Court of Australia (Division 1) pronounced judgment between the parties in causes of action brought in respect of their children and their property under Pt VII and Pt VIII of the Family Law Act 1975 (Cth) ("the Act") respectively.
2. On 18 July 2025, the appellant appealed from both judgments. The appeal is listed for hearing before the Full Court on 29 October 2025. The appeal registrar made procedural directions on 25 August 2025 to ensure the readiness of the appeal for hearing at that time.
3. At the time the procedural directions were made, the appeal registrar made this notation:
   1. Given the listing of the appeal on 29 October 2025, the respondent is likely to be represented by Counsel yet to be identified.
4. On 3 September 2025, little more than a week after the procedural directions were made, the respondent filed an Application in an Appeal seeking an adjournment of the appeal hearing. In support of the application, the respondent relied upon her affidavit filed on 3 September 2025.
5. The appellant opposed the adjournment application, relying upon his Response and supporting affidavit, both filed on 11 September 2025.

1. In essence, the respondent's adjournment application is predicated upon the unavailability of her chosen counsel on the date appointed for the appeal hearing causing her to incur additional costs by securing representation by alternate counsel, which costs are considerable.
2. The respondent deposed this in her affidavit:
   1. I have not been in a position to meet payment of my outstanding legal costs given that the father has not met payment of the settlement sum of $1,111,851 pursuant to the final Orders as the father has not met payment of the same.
   2. On 24 July 2025 the father filed an Application in a Proceeding seeking a stay of some of the final Orders and fresh orders that he had not prosecuted at trial. This Application is listed for a full day hearing on 16 September 2025.

...

1. The estimated fees for my current solicitor and Senior and Junior Counsel to continue to represent me in these proceedings are between $30,500 and $62,500.

...

1. I was extremely distressed by the thought of the financial and emotional cost of engaging new Counsel on short notice, particularly given the long history of my matter.

...

1. The fee estimates for [other named senior counsel] to appear with [other named junior counsel] are between $116,250 and $144,850.

2. The fee estimates for [another named senior counsel] to appear with [another named junior counsel] are between $118,450 and $160,250.

3. I cannot afford to meet the cost of alternate counsel.

...

1. It is very likely that I will have no option but to become self-represented in the event that my existing Senior and Junior Counsel cannot appear on my behalf at the appeal.

1. Evidently, the respondent would be able to arrange for new counsel to represent her in the appeal, but it would be much more expensive because the new counsel would need to spend time familiarising themselves with the extensive history of the litigation, which is already known to her existing counsel. According to the respondent's evidence of the enquiries she has so far made, the difference in cost would approximate $80,000. The respondent would like to be represented by both senior and junior counsel, which is not unreasonable when the appellant expects to be similarly represented. Both parties were also represented by senior and junior counsel at trial.
2. Forcing the respondent to adhere to the existing hearing date and engage new counsel would therefore be very costly to her. Such an impost should also be considered in the context of the appellant not yet having paid the respondent the sum of $1,111,851 under the appealed orders (Order 31(a)), which payment is due imminently. The appellant alleges it is the respondent who is refusing to settle on the due date, but he is still presently seeking a stay of the appealed orders (including that order) and his stay application is due to be heard next week. In any event, while the immediate payment of that sum to the respondent under the appealed orders would give her the funds to meet the costs of new counsel, it would not preclude her from having to pay some $80,000 more in costs than she would otherwise need.
3. As for other factual disputes, the parties disagree about whether the appellant is $8,012 in arrears with child support payments and whether the appellant recently withdrew $195,487 from the parties' joint loan facilities for his own benefit. No factual findings in respect thereof are possible when neither party was cross-examined.
4. The Full Court could hear the appeal on 19 November 2025 in lieu of 29 October 2025. The appellant will not be unduly prejudiced by the appeal hearing being pushed back by only three weeks, which his counsel commendably admitted. The appellant's choice of senior counsel has since become unavailable for the existing hearing and so he has already briefed another senior counsel. One or other senior counsel will likely be available to the appellant if the appeal date is shifted to November. The appellant's junior counsel will not be available on that date, but that consideration is less important. Any written work already done by junior counsel on a draft Summary of Argument should be forfeited to the appellant's solicitors upon payment of junior counsel's fee. The value of the work will not likely have been lost.
5. On balance, the appeal hearing should be adjourned, which consequently enables the parties' reprieve from the tight timetable imposed by the procedural orders made on 25 August 2025. The time for them to file Summaries of Argument will be extended accordingly.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.