Narkis and Narkis - [2017] FamCA 52

FAMILY COURT OF AUSTRALIA

NARKIS & NARKIS

[2017] FamCA 52

FAMILY LAW – INTERLOCUTORY HEARING – applicant self-represented seeks discovery, distribution of funds to obtain legal representation – where the evidence to support such orders is not provided.
FAMILY LAW – SUBPOENAE – objection by applicant to release of her (and the respondent’s) police records in a parenting matter – where no basis for assertion of oppression.
FAMILY LAW – OBJECTION – by mental health clinic of treatment of the children – where the objection is based on statutory grounds and concern for the applicant as well as the child - Objection overruled.

Family Law Act 1975 (Cth)

Mental Health Act 2014 (Vic)

Hatton v Attorney-General Commonwealth of Australia (2000) FLC 93,038
National Employers Mutual General Association Limited v Waind and Hill [1978] 1 NSWLR 372

APPLICANT:

Ms Narkis

RESPONDENT:

Mr Narkis

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

210

2014

DATE DELIVERED:

9 February 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

2 February 2017

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Salamanca

SOLICITOR FOR THE RESPONDENT:

Cantwell Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Trapski

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Trapski Family Law

Orders

That the amended response of the wife filed 19 December 2016 is dismissed.
That the objection by the proper officer of the TT Hospital to the subpoena issued by the court on 13 January 2017 is dismissed and all information there provided is released for inspection but not copying.
That the objection filed 25 January 2017 to the subpoena issued by the court to Victoria Police on 13 January 2017 is dismissed and any information produced under such subpoena be released for inspection and copying.
That the costs of the Independent Children’s Lawyer fixed in the sum of $552 are reserved to the trial.
That the costs of the respondent husband are reserved to the trial and the husband has leave to file such further material as he is so advised in relation to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Narkis & Narkis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 210 of 2014

Ms Narkis

Applicant

And

Mr Narkis

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

These reasons relate to interlocutory proceedings heard on 2 February 2017 between Ms Narkis (“the applicant”) and Mr Narkis (“the respondent”). The applicant represents herself and the respondent has lawyers. That in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Narkis and Narkis

Details

AGLC: Narkis and Narkis [2017] FamCA 52
Case: [2017] FamCA 52
Decision Date: 9 February 2017

CaseChat Overview and Summary

In the matter of *Narkis and Narkis*, heard before Cronin J, the proceedings concerned a dispute between a husband and wife, with the Independent Children's Lawyer also involved. The specific nature of the underlying dispute is not detailed, but the orders indicate a disagreement regarding the wife's amended response and objections to subpoenas issued to Victoria Police and the TT Hospital.

The court was required to determine whether to dismiss the wife's amended response, and to rule on objections made by the TT Hospital and Victoria Police to subpoenas seeking information. The court also had to consider the costs associated with the Independent Children's Lawyer and the respondent husband.

Cronin J dismissed the wife's amended response. The objections by the TT Hospital to a subpoena were also dismissed, with the information provided to be released for inspection but not copying. Similarly, the objection by Victoria Police to a subpoena was dismissed, and any information produced was to be released for both inspection and copying. The costs of the Independent Children's Lawyer were fixed at $552 and reserved to the trial, as were the costs of the respondent husband, who was granted leave to file further material concerning costs.

Orders

Orders of the court

That the amended response of the wife filed 19 December 2016 is dismissed.

That the objection by the proper officer of the TT Hospital to the subpoena issued by the court on 13 January 2017 is dismissed and all information there provided is released for inspection but not copying.

That the objection filed 25 January 2017 to the subpoena issued by the court to Victoria Police on 13 January 2017 is dismissed and any information produced under such subpoena be released for inspection and copying.

That the costs of the Independent Children’s Lawyer fixed in the sum of $552 are reserved to the trial.

That the costs of the respondent husband are reserved to the trial and the husband has leave to file such further material as he is so advised in relation to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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