Narkis and Narkis and Anor

[2018] FamCA 333

FAMILY COURT OF AUSTRALIA

NARKIS & NARKIS AND ANOR [2018] FamCA 333

FAMILY LAW – CHILDREN – Parenting - where the husband had sole parental responsibility for major long-term decisions but 16 year old child resides with mother-where the husband wanted to know where the child was living-consideration of the issue of responsibilities as a parent and welfare of a child.

Family Law Act 1975 (Cth)

APPLICANT: Ms Narkis

RESPONDENT: Mr Narkis

INTERVENOR: Mr HH Narkis

FILE NUMBER: MLC 210 of 2014

DATE DELIVERED: 16 May 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne, In Chambers

JUDGMENT OF: Cronin J

HEARING DATE: 16 May 2018, In Chambers

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McEvoy QC With  Ms Matson

SOLICITOR FOR THE APPLICANT: Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT: Ms Lane

SOLICITOR FOR THE RESPONDENT: Cantwell Family Lawyers

COUNSEL FOR THE INTERVENOR: Mr Wraith

SOLICITOR FOR THE INTERVENOR: Tisher Liner Fc Law

Orders

1. That the wife forthwith through her solicitors, provide the husband with the residential address of the child E.

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

And

Mr HH Narkis

Respondent

REASONS FOR JUDGMENT

1. By his response to an initiating application filed by Ms Narkis (“the wife”), Mr Narkis (“the husband”) inter alia  sought a number of parenting orders which included the following:

   [2]That the wife provide to the husband forthwith…details of the residential address…of [E] (the child).

2. At the hearing on 28 March 2018, the wife opposed the husband having that detail. As she had not answered the husband’s supporting evidence (and she was not present at Court albeit represented by both senior and junior counsel and solicitor), I gave her an opportunity to file evidence to show cause why the husband, who currently has sole parental responsibility for (but not possession of) the child, should not know her whereabouts.

3. The background of this dispute would take many paragraphs to explain. The complexities of the parenting dispute are large and, for present purposes, it is unnecessary to set them all out as I consider I can otherwise determine the interim matter in the child’s best interests without that depth of explanation.

4. The husband had the care of the child under orders I made in 2017 but he, apparently at the child’s request, enrolled her in a school boarding environment at what I understood was a rural location for a school term. the child is about to turn 16 years of age. Suffice to say, the child soon thereafter returned to her mother and has remained in that environment for many months.

5. In filing the proposed application for orders on 21 March 2018, the husband also filed a Notice of Risk of Child Abuse form and alleged:

   ·    The (wife) is a serious compulsive hoarder and the child is at risk given her environmental (sic) neglect;

   ·    The (wife) is leaving her unsupervised at night;

   ·    The (wife) is psychologically unstable, exposing the child to her behaviour and manipulating the child significantly, including making false reports to the police. The (wife) has been arrested by police for assaults on two other people (not the (husband)) and was taken by police to a psychiatric hospital;

   ·    ….

   ·    DHHS have been previously involved and advised the (husband) that they have grave concerns as to the child being in her mother’s care.

6. The notice just mentioned acts as a mandatory reporting notification to the Department of Health and Human Services in Victoria and in any event, as the husband alleged, they were previously involved and expressed concern about the child’s welfare. As the wife now deposes, and I have no evidence to the contrary, the department has taken no action notwithstanding the allegations of the husband and the fact that the child remains with her mother. So too, it would seem, police have not taken any action in conjunction with the department despite the assertion of the husband that they took the wife to a psychiatric hospital and have arrested her for assaults. It is the husband’s view that despite his requests for action by both State bodies, they “do not appear interested” (husband’s affidavit [54]).

7. I have concluded that despite the husband’s concerns, the State has chosen not to intervene and remove the child. That conclusion is strengthened when I also contemplate that an order was made by the Court under s 91B of the Family Law Act 1975 (Cth) (“the Act”) requesting the Department to intervene. The Court file shows that the “notice of risk” form was sent at the same time as the relevant order under s 91B. Six weeks have gone by and there has been no response from the Department. The court file shows their acknowledgment of the documents.

8. The basis of the husband’s concerns, as expressed in his affidavit supporting the proposed orders, included much argument and opinion rather than fact but I have discerned his position to be:

   ·An intervention order was made against him nominating both the wife and the child against which he has appealed to the County Court and a hearing will occur in August; and

   ·The pursuit of the child would place him at risk of arrest.

9. At paragraph [51] of his affidavit, the husband deposed that in respect of his personal concern about being arrested:

   The Family Court have (sic) not been able to assist or protect me in this respect.

10. One would hope that the statement just mentioned relates to a conflict of laws point because there has been no application for a recovery order and no removal of the jurisdiction by virtue of any State action under welfare laws.

11. The substance of the husband’s complaint about the wife’s application for an intervention order is that whilst he was in the United States (where he lives), she made an application to vary intervention orders and sought to proceed in his absence. He described the order as being made on an ex parte basis although the order does not seem to suggest that. No doubt the issue of the husband’s outrage about what happened will be cleared up by the County Court on the appeal but it seems that the following can be concluded from the order itself:

    ·the child was named as a protected person along with the wife;

    ·The husband was not at court;

    ·Paragraph 10 reads:

    (the husband) has requested an adjournment by email from the U.S.A., but no correspondence has been received from lawyers. An application in the future by the (husband) will only be with the permission of the court and on notice to the applicant.

    ·The husband may do anything that is permitted by a Family Law Act order but only if he does not commit family violence while doing so.

12. The face of the order, and the husband’s evidence as to how it came about, certainly should give rise to concerns where:

    ·there have been previous interventions in favour of the husband;

    ·there was a pending contested hearing of a number of cross-claims;

    ·the records should have shown that the wife had been previously refused such an order;

    ·the child was the subject of a Family Court of Australia order and there was no application for an order under the provisions of division 11 of Part VII of the Family Law Act; and

    ·The husband was undoubtedly in the United States of America.

13. In that context, it is timely to remember that the immediate application concerns the husband knowing the whereabouts of the child. There is:

    ·no recovery order pending;

    ·no suggestion of any action by the husband to remove the child from her immediate living circumstances and his expressed statement about his own fear of being arrested; which fear would have to be seen as reasonable with the extant intervention order;

    ·concern as previously expressed about the wife’s hoarding of things which was said to have contributed to environmental problems making a home in which the child lived, uninhabitable; and finally,

    ·there is the child’s age of almost 16 years.

14. Added to those matters is the fact that there is now a pending application in this Court by the wife to discharge previous final parenting orders under which the child was to live with the husband. An independent Children’s Lawyer has been appointed to represent the child’s interests albeit not her instructions.

15. The wife’s evidence may be comfortably encapsulated in the following paragraph of her affidavit:

    [16]Given the acrimonious relationship between me and the Respondent, I am concerned that should the Respondent know my residential address, he may take steps to disparage me to my neighbours and community.

    There is no evidentiary foundation expressed for that fear and based on the matters set out above, I consider it unreasonable for me to give it any weight.

16. The evidence went on to say that the child “has expressed concerns to me” about the husband knowing her address:

    [17]…given the history of the police coming to the hospital on or about 4April 2017 to remove [the child] from my care to return her to the Respondent.

    Nothing in the affidavit explained what the child said and in what context. The affidavit fails to set out the far more comprehensive circumstances under which the child was collected (and which seems to be the reference to the hospital) because of the wife’s failure to properly participate in the court process that led to that order being made but also the aftermath of how the child spent time then with her father.

17. The wife then said she was prepared to notify the Independent Children’s Lawyer of the child’s address if that lawyer thought it necessary. That misses the point. This application was not about the child having access to the lawyer representing her interests but rather, her father knowing the circumstances under which she was living having regard to the history of the last few years.

18. At present, the husband has sole parental responsibility for decisions of a major long-term basis about the child. Despite the emotive approach of each party, I consider the proper way to determine the matter is to look at the law and then ultimately decide whether the order pursued by the husband is in the child’s best interests.

19. Section 65D of the Act provides the jurisdiction of the Court to make parenting orders. It provides that the court may make such order as it consider proper.

20. The powers of the court are found in s 64B of the Act which provides inter alia that a parenting order may deal with:

    any aspect of the care, welfare and development of the child or any other aspect of parental responsibility for a child. (my emphasis)

21. Section 61C of the Act relevantly provides:

    (1)Each of the parents of a child who is not 18 has parental responsibility for the child.

    (2)…

    (3)Subsection (1) has effect subject to any order of a court for the time being in force.

22. Thus, parental responsibility was not removed from the wife other than in regard to major decisions. Whilst the wife can therefore continue to make decisions otherwise about the child, so can the husband. The point here is about what responsibilities (if not entitlements) the husband has by virtue of both having the responsibilities given to him by the Court but also those given to him by law.

23. Section 61B of the Act provides:

    In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. (my emphasis)

24. How can the husband carry out the responsibilities as a parent expected of him by the law if he does not know where the child lives and, more importantly, the circumstances under which she is living? There can be no doubt that the tenor of Part VII of the Act is about best interests but that is underpinned by an emphasis on the protection of children (see s 60CC(2A) as an example). To decide whether the husband should know of the whereabouts of the child, the Court can only turn to the evidence particularly noting that each party had legal advice before it was provided. One is entitled to presume that all factual material would be put before the court to support or resist the orders involved.

25. Paragraphs 11 and 13 above are therefore significant here. I do not find there is any risk of harm to the child from the husband. I take into account that in making any parenting order, the court is required to consider matters in s 60CC, one of which factors, is the views of the child. Here, the child’s views do not affect her welfare having regard to the matters in paragraphs 11 and 13 above. I also find the husband is entitled to know the circumstances of the child’s lifestyle having regard to the matters set out in 13 above. He is a parent with responsibilities dictated by law and, if for no other reason, information, which no doubt could be drawn from a variety of sources, could precipitate not just proceedings in this Court but in the State courts as well.

26. Accordingly, the wife must advise the husband of the child’s residential address.

27. In circumstances where there is an intervention order, the husband cannot attend upon the address and should the wife consider that the State Court’s order is inadequate, she always has the right to bring an injunctive application in this Court.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 16 May 2018.

Associate: 

Date:  16 May 2018