Narkis and Narkis (No 2) - [2016] FamCA 976

FAMILY COURT OF AUSTRALIA

NARKIS & NARKIS (NO 2)

[2016] FamCA 976

FAMILY LAW – DIRECTIONS - Parenting Orders - Mother’s absence because child said to be ill and hospitalized - Adjournment but interim orders to enable father to obtain information from hospital.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Narkis

RESPONDENT:

Mr Narkis

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

210

2014

DATE DELIVERED:

31 October 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

31 October 2016

REPRESENTATION

THE APPLICANT:

No appearance

SOLICITOR FOR THE RESPONDENT:

Cantwell Family Lawyer

COUNSEL FOR THE RESPONDENT:

Mr Trim

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Trapski, Trapski Family Law

Orders

The application for parenting orders is adjourned to 9.00am on Friday 4 November 2016 (part-heard) for the purposes of fixing the matter for trial (and the determination of whether the property proceedings listed in March 2017 should be consolidated).
That Ms Narkis forthwith provide instructions to any medical practitioner treating E (the child) born … 2002 such as to provide such information as a parent would normally be entitled to receive and know about their child and to the extent that the said medical practitioners have not received those instructions, a copy of this order shall be sufficient warrant to enable them provide that information by telephone or otherwise to Mr Narkis (the father of the child) who is currently in the United States of America.
This order shall be served electronically by the father on the mother at her usual email address.
For the purposes of s 121 of the Family Law Act 1975 (Cth), the father is entitled to provide a copy of this order to the said medical practitioners.
That the reasons this day be transcribed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Narkis & Narkis (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (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

Today is the return date of an application relating to the child who is 14 years of age. The matter comes before the Court by way of a chambers order for a directions hearing. That chambers order was made by me on 12 October.
This morning at approximately 7 o’clock, an email was received by the Court from the mother, Ms Narkis, indicating that she would not be able to attend court this morning because her daughter was ill and she was going to hospital. She left a telephone number to enable the Court to contact her and she said she would take the call if she could. The Independent Children’s Lawyer made a number of calls and the Court itself has made that call unsuccessfully. All of the calls go to voicemail. That is not for a moment to say that the child is…

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.

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Details

Case: [2016] FamCA 976
Decision Date: 31 October 2016

CaseChat Overview and Summary

In the matter of *Narkis and Narkis (No 2)*, Cronin J of the Family Court of Australia considered an application for parenting orders between the parties, Mr Narkis (the father) and Ms Narkis (the mother), concerning their child, E. The father, who is residing in the United States of America, sought access to information regarding E's medical treatment.

The primary legal issue before the court was the extent to which the father, as a parent, was entitled to receive information about his child's medical care, particularly given his geographical distance from Australia. This also involved determining the appropriate mechanism for facilitating the disclosure of such information and the legal authority for medical practitioners to provide it.

Cronin J reasoned that a parent is normally entitled to receive information about their child's health. To give effect to this principle, the court ordered that the mother forthwith provide instructions to any medical practitioner treating E, authorising them to disclose information to the father as a parent would normally be entitled to receive. In the event that the mother had not provided such instructions, the court declared that a copy of the order itself would serve as sufficient warrant for medical practitioners to provide the information to the father. The court also made provision for the service of this order and confirmed the father's entitlement to provide a copy to medical practitioners for the purposes of section 121 of the *Family Law Act 1975* (Cth). The application for parenting orders was adjourned for the purpose of fixing the matter for trial and determining whether property proceedings should be consolidated.

Orders

Orders of the court

The application for parenting orders is adjourned to 9.00am on Friday 4 November 2016 (part-heard) for the purposes of fixing the matter for trial (and the determination of whether the property proceedings listed in March 2017 should be consolidated).

That Ms Narkis forthwith provide instructions to any medical practitioner treating E (the child) born … 2002 such as to provide such information as a parent would normally be entitled to receive and know about their child and to the extent that the said medical practitioners have not received those instructions, a copy of this order shall be sufficient warrant to enable them provide that information by telephone or otherwise to Mr Narkis (the father of the child) who is currently in the United States of America.

This order shall be served electronically by the father on the mother at her usual email address.

For the purposes of s 121 of the Family Law Act 1975 (Cth), the father is entitled to provide a copy of this order to the said medical practitioners.

That the reasons this day be transcribed.

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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