Mertz & Mertz (No 2) [2025] FedCFamC1A 190 (21 October 2025)

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).

1. An appeal is listed for hearing on 19 November 2025. This is the appellant's application to adjourn the hearing on the grounds that his preferred choice of senior and junior counsel are not available and the additional costs he will incur in having to retain new counsel. The application is opposed by the respondent. The Independent Children's Lawyer neither consents nor opposes the application.

1. On 23 June 2025, a final property and parenting order was made by a judge of the Federal Circuit and Family Court of Australia (Division 1) and on 18 July 2025 a Notice of Appeal was filed. Appeal directions were made on 25 August 2025 listing the appeal for hearing on 29 October 2025. At that time, the respondent foreshadowed an application to adjourn the appeal hearing as her senior and junior counsel, who had represented her since 2023, were not available on the proposed hearing date. The respondent promptly filed an Application in an Appeal on 3 September 2025. The adjournment was opposed.
2. On 11 September 2025, the appeal hearing was adjourned for three weeks, i.e. to 19 November 2025, because of the additional $80,000 in costs the respondent contended she would incur if she had to retain new counsel. The appeal hearing was not adjourned to meet counsel's convenience.
3. At the hearing on 11 September 2025, the appellant made the following concessions:

(a) The appellant had already retained new senior counsel, namely, Mr Brown KC, as his preferred senior counsel, Mr Puckey KC, was not available on the original appeal hearing date, namely, 29 October 2025;

(b) Given the proposed three-week adjournment from 29 October 2025 to 19 November 2025, the appellant "would be hard pressed to argue prejudice";[1]

(c) The appellant's "silk and junior are not appearing at the appeal. That's his choice. He comes before the court wanting to get the matter on as quickly as possible".[2]

1. The concessions were made in circumstances where the appellant informed the Court that neither Mr Puckey KC nor Dr Mort were available on 19 November 2025. Neither Mr Puckey KC nor Dr Mort represented him at the trial.

1. Notwithstanding the appellant's knowledge that neither of his preferred counsel would be available for the adjourned appeal hearing, it seems he continued to retain them, and notwithstanding his already having retained alternative counsel, namely, Mr Brown KC (whom I note is available on 19 November 2025). Mr Puckey KC and Dr Mort settled the appellant's Summary of Argument which was filed on 17 October 2025.
2. The appellant contends that he has incurred fees to Mr Puckey KC of $22,200 and to Dr Mort of $47,410 and that to retain them for the appeal hearing the estimate of their further costs are $39,600 for Mr Puckey KC and $19,800 for Dr Mort, i.e. total fees of $129,010.
3. The appellant has obtained estimates from two alternative senior and two alternative junior counsel and has been advised that their combined fees range from $165,000 to $204,600 or $140,100 to $175,800 for a one-day appeal hearing where the Summary of Argument has already been filed. As the appellant's counsel submitted before Austin J on 11 September 2025, it might be that "there hasn't been proper due diligence in relation to other available counsel that could be of a more - that could be more economically attractive to the situation".[3]
4. It is most unfortunate for the appellant that he finds himself in this predicament and I am not without sympathy for him as it seems he may well incur additional costs in briefing alternative counsel for the appeal. However, adjourning the appeal hearing may not avoid those additional costs as I am unable to say when the appeal would be able to come on for hearing other than to indicate that unless another appeal already listed in December 2025 does not proceed, it will not be until sometime next year. If the appeal is adjourned, we may be in the same position when alternative dates are allocated. It is essential that the appeal be disposed of without further delay.

1. I am not persuaded that the appeal hearing should be adjourned, and the application will be dismissed.

1. The appellant concedes that as he has been wholly unsuccessful it is difficult to resist a costs order. The appellant will be ordered to pay the respondent's costs of and incidental to the application in the appeal fixed in the sum of $8,197 and payable within 30 days.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Carew.

[1] Transcript 11 September 2025, p.7 line 32.