Narkis and Narkis (No. 2)

[2014] FamCA 420

FAMILY COURT OF AUSTRALIA

NARKIS & NARKIS (NO. 2) [2014] FamCA 420

FAMILY LAW – PRACTICE AND PROCEDURE – Case management

Family Law Act 1975 (Cth)

APPLICANT: Ms Narkis

RESPONDENT: Mr Narkis

FILE NUMBER: MLC 210 of 2014

DATE DELIVERED: 16 April 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: 16 April 2014

JUDGMENT OF: Cronin J

HEARING DATE: 16 April 2014

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Sweeney

SOLICITOR FOR THE RESPONDENT: Cantwell Family Lawyers

Orders

1. That all outstanding interim applications are adjourned to 23 June 2014.

2. That the reasons this day be transcribed.

3. That E born … 2002, (“the child”) spend time with the husband from 6.00pm on Wednesday 23 April 2014 until 10.00am on Thursday 24 April 2014.

4. That until further order, the child otherwise spend time with the husband as follows:

   (a)When the husband is in Melbourne:

   i.In week 1, from 5.30pm on the day after the husband arrives in Melbourne for seven consecutive nights and each alternate week thereafter;

   ii.from after school on Wednesday until the commencement of school on Thursday or if there is no school then from 9.30am on the Wednesday until 6.30pm on the Thursday and each alternate week thereafter;

   iiion Father’s Day weekend from 6.00pm on Saturday until 8.00pm on the Sunday;

   iv.on the child’s birthday for a period of two hours if the birthday falls on a school day from 5.00pm to 7.00pm and for a period of four hours if the birthday falls on a weekend or non-school day from 10.00am to 2.00pm; and

   v.on the husband’s birthday from 5.30pm the night prior to his birthday until 5.30pm the night after his birthday.

   (b)    when the husband is not in Melbourne and the wife and the child travel to a country in which the husband is present, the husband spend time with the child as agreed between the parties and in default of agreement, as set out above; and

   (c)    for school holiday periods:

   i.for half of all school holidays in Terms 1, 2 and 3 but such half be as agreed between the parties and in default of agreement for the first half;

   ii.for three weeks in the long summer vacation period as agreed between the parties and in default of agreement, for a three week period commencing in the first week of January; and

   iii.if any holiday period is to take place in City D, USA, then the husband is to make all arrangements for the child to travel as an unaccompanied minor and the husband shall pay for all travel costs for the child associated with such time.

5. That the wife forthwith advise the husband of all planned events and arrangements made in respect of the child’s religious ceremony F.

6. That on the day of the child’s religious ceremony F in 2014:

   (a)    The husband is to be responsible for the organisation of the “G Celebration” to be held at the church after the child’s “religious ceremony A” with the husband and his family to have liberty to attend the church; and

   (b)    The child to spend time with the husband after the ceremony with the husband to return the child to the wife at 4.00pm.

7. That the husband and his legal advisers have liberty to inspect the file of the proceedings in this Court between the wife and her former husband Mr H, such file to be released to the husband’s solicitors for inspection but not copying.

8. That at the time that the wife provides the child for handover to the husband, the child be provided with all necessary clothing, footwear, toiletries and school requisites and at the conclusion thereof, the husband return the relevant items to the wife.

9. That the parties forthwith attend upon Dr J for a psychiatric evaluation and each party authorise Dr J and any medical practitioner who is or has treated them, to exchange any medical information or documentary evidence relevant to any past attendances on them by the parties themselves.

10. That the reasons this day be transcribed and be made available to the parties.

11. That the contravention application filed this day by the wife be withdrawn by leave.

12. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

REASONS FOR JUDGMENT

1. There are a variety of issues in dispute in this particular application by both parties.  Notwithstanding arguments about who was late and who was not, it seems that most of the issues have been sorted out on an interim basis and any orders I make today in relation to the parenting will be of an interim nature. 

2. One issue that is in dispute concerns the opportunity for the husband and his advisors to inspect a file of the wife concerning litigation with her former husband.  It is sought to inspect and copy that file.  That is opposed by Ms Narkis, (“the wife”) for a number of reasons, most of which relate to the fact that it will open up “Pandora’s Box” in relation to the other two children of her former relationship and potentially cause them not only angst, but to be potentially involved in these proceedings.

3. The wife says there is no basis for the husband to have access to the file at this stage because he already has those documents and indeed he was a part of her life when those proceedings were going on. 

4. Chapter 24 of the Family Law Rules 2004 and specifically rule 24.13 sets out who can inspect court files, with whose permission and on what basis. The relevant rule is subrule (3), which provides,

   In considering whether to give permission under this rule, the court must consider the following matters:  (a) the purpose for which access is sought;  (b) whether the access sought is reasonable for that purpose;  (c) the need for security of court personnel, parties, children and witnesses and (d) any limits or conditions that should be imposed on access to or use of the court record.

5. Dealing with those four concepts, Mr Sweeney of counsel on behalf of the husband says that the information is sought primarily for two purposes.  The first:  there is a pattern in the past hearing which goes to the wife’s capacity and mental health issues and there will be information in affidavits as well as reports that may be of substance and therefore of assistance in these proceedings.  I note that there is still an argument in this case about psychiatric health, but of both parties, so to that extent, I can see some sense in why the father should be examined.

6. The second issue is that there are disputes between the parties in the financial area as to initial contributions and no doubt financial statements in that earlier file will establish or put to bed those issues.  There is another issue as well, which is that, to my horror, the parties had a dispute over simple things such as whether underwear was provided for the child in the most recent orders that I made.  When those sorts of disputes occur, it clearly indicates that there is a problem in relation to the wife and the husband in relation to the child.

7. It may very well be that the same applies to the husband’s past marriage.  Although that file has been suggested should be produced today, there is not sufficient evidence, if any at all, that would enable me to make a finding that would satisfy rule 24.13(3)(a). 

8. A second issue is the question of whether or not the access to documents sought is reasonable.  The wife says that the material is already in the possession of the husband either physically or indeed he would have been present and seen all those things, but that is not going to assist the court for whom the evidence is to be directed.  It seems to me that therefore the application is reasonable for that purpose.

9. There is no question in this case as far as I can see that the court would need to be worried about the security of parties and children.  Whilst the wife has indicated she is worried about the involvement of the other children by virtue of the exposure of that file, that is not what subrule (3) is about.  I cannot think of any conditions that should be specifically ordered in relation to the access to the material because it is very clear, not only by virtue of the rules, but also from authorities right throughout all courts in Australia that a party who has access to material cannot use that material for any other purpose other than for the purposes of the particular proceedings.  To do so would amount to a contempt of court.

10. There is nothing that I can see here that the husband is using or proposing to use that material for any illicit purpose or any extraneous purpose.  Matters put to me by Mr Sweeney indicate quite clearly that it is to be focused on this particular case and for preparing issues on that basis.  I propose to make an order that the husband and his legal advisors have access to that court file, but I do not propose to make an order at this stage that any documents be copied.  To the extent that on the next return date there are issues about why the documents might be needed to be copied, I will consider that at that particular point.

11. Turning then to the other reason why the case was here today, the parties seem to have reached agreement about the interim parenting matters and I propose to make orders.  Two other orders were sought.  The first was set out in paragraph 11 and that related to each party being at liberty to communicate with the child when she is not in their care once per day.

12. The original application did not have the words “once per day” in it, but it is quite clear that the husband is focusing on the fact that that is more communication than is necessary for an 11 year old girl.  The wife’s position is that the child is of a nature where she will make calls at her whim.  In my view, that is not appropriate.  It seems to me however that I need some evidence as to what that is all about and why the child would be distressed if she was not able to call once per day, not only to her mother, but also to her father.  I should leave that issue to the return date, which I propose to be 23 June 2014. 

13. The other order sought is that the wife be restrained from discussing these proceedings with or within the hearing of the child.  Whilst there is some evidence that might suggest that is occurring, I am cognisant of the fact that the child is very much embroiled in these proceedings.  That is very sad, but it seems to me that a professional will no doubt pursue the question of just what the child knows for the purposes of seeing whether she has been embroiled and/or manipulated.  Indeed, if I find in the ultimate proceedings that a party has manipulated the child by discussing these proceedings and that includes discussing the proceedings within the hearing of the child, I would be most likely to find that it is irresponsible parenting.  The parties are therefore on notice.

14. In relation to other matters concerning the financial issues, this case was specifically adjourned to today for the purposes of those issues being determined.  The wife has complained that the husband was late by a day.  I have observed that the orders I made back in March really contemplated the fact that it was going to be a very fine timeline and I appreciate that the wife says now that the limited time she has had to digest the financial issues is insufficient.  Mr Sweeney, whilst technically opposing the adjournment, sees no real prejudice to the husband in that adjournment, but the earliest date that I can give it for interim issues, bearing in mind the resources of the court and the fact that the parties have already had one attempt today, is 23 June.

15. Accordingly, I propose to adjourn all outstanding interim issues, including parenting issues that are otherwise unresolved, to 23 June.  The parenting orders I make today are until further order and they will not be re-litigated unless there are new facts and circumstances that arise between now and then.  I also propose to leave the issues of the caveat removal, the removal of the material from the factory because those are issues that are obviously not pressing immediately, but to the extent that they are unresolved on 23 June, I shall deal with those as well.

16. That then leaves the other issue which the registrar adjourned to today, which was the objections to subpoenae.  There has been much discussion this morning about whether there is agreement to that or no agreement to that and there are other subpoenae as well.  To the extent that those objections are still alive on 23 June, I will deal with them and I warn everybody on the basis that it must be determined on the evidence and not just submissions.  I will make orders therefore in those terms and adjourn the matter to 23 June.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 16 April 2014.

Associate: 

Date:  18 June 2014