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 not ill warranting hospitalisation.
I am adjourning the substantive parenting proceedings for some days because of an issue of consolidation. This case has an unfortunate history, including (as described by counsel for the father) 35 hearings. The file speaks for itself because it is in eight volumes and the last numbered document is 172. The colour scheme used by the Court indicates that it has had numerous hearings including in the last 12 months.
There are apparently two proceedings extant. One relates to the parenting of the child. The position of the father who lives in the United States of America is that he wishes for the child to live with him there.
The child has apparently predominantly lived with her mother in Australia. It is the Independent Children’s Lawyer’s preliminary view that on the evidence thus far she would support a relocation of the child to the United States. Travelling alongside the parenting application is an application for property settlement brought by Ms Narkis herself. Apparently, the matter was before Bennett J in October 2015 at which time the two proceedings were bifurcated. The logic behind that, I am told, is that because the property proceedings were complicated, it was decided that the parenting matter needed attention and could be dealt with first. It is with some embarrassment that the Court has to concede that that has not happened, and indeed the parenting matter looks like it could be heard in February. At a hearing on 20 March 2016, Thornton J set the property matter down for six days in March 2017. In June of this year in a hearing before Stevenson J, in relation to other matters, her Honour indicated that she was concerned about the potential impact of the consolidation of the proceedings, which was the application of one of the parties at the time, and her Honour expressed the concern about the cost as well as the involvement of the Independent Children’s Lawyer.
I have observed today, the reality is that these parties would otherwise have two trials within a matter of a month and there would be undoubtedly some overlap. That would leave both parties certainly litigation exhausted, if not stressed. There is the public purse of the Court’s expenses to think about where there is an overlap. It seems to me that there is no reason why these two cases could not be consolidated, but unfortunately Ms Narkis is not here today.
I propose to give Ms Narkis an opportunity to have a voice on that issue, in which case both proceedings could be heard in late February and into early March, or indeed somewhat later in March if they were to be continued before Thornton J.
Having been provided with details of his absence and learning that his child is said to be in hospital, Mr Narkis has made a number of attempts from the United States to the hospital to find out just exactly what is happening and has been rebuffed. Just exactly what that means remains to be seen and will no doubt be an issue that will come out in the trial. There is a strong suspicion articulated by the independent children’s lawyer that the mother may not be cooperative in permitting the doctors to provide the information. If indeed that is so that is most unfortunate, because the presumption at this stage applies and both parties have the same parenting responsibility as well as entitlements to knowledge and information.
The application, therefore, is that I direct the mother of the child to provide instructions to the doctors to provide Mr Narkis with whatever information he needs to know about the health of his daughter. Failing the mother giving that detail, then the order be permitted to be produced to the doctors to indicate that from the Court’s perspective, Mr Narkis has the same parental responsibility as does Ms Narkis.
The provisions of section 121 of the Family Law Act 1975 (Cth), can be overcome by an order indicating that the Court is content for the doctors to be provided with a copy of the order indicating that he is entitled to that information. The power to make the order lies in section 64B which describes what a parenting order is and the Court is empowered by subsection (2) to make a number of orders, including the allocation of parental responsibility for a child as well as any aspect of the care, welfare, or development of that child and any aspect of parental responsibility for that child.
In my view, the entitlement to information from a medical practitioner when one’s child is said to be hospitalised falls within the purview of parental responsibility. Just exactly why the medical profession do not accept that if they accept that Mr Narkis is the parent of this child remains something of a mystery. But in my view, this is a case where it is in the best interests of the child that her father be aware of exactly what is happening to her. It is not necessary for me to deal with the presumption that arises under the making of a parenting order here because the reality is no one is seeking to depart from the statutory position that each party has equal shared parental responsibility.
There are clearly indications in orders of the Court that Mr Narkis has a good relationship with the child, not the least of which is that there have been previous orders including the father having significant time. Just where the child will live in the future is the issue before the Court today. In my view, it is in the best interests of the child that her father have the right to have the doctors explain to him exactly what is wrong with her at the moment.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 31 October 2016.

Associate:

Date: 15 November 2016