Narkis and Narkis (No 3)
[2017] FamCA 184
•27 March 2017
FAMILY COURT OF AUSTRALIA
| NARKIS & NARKIS (NO 3) | [2017] FamCA 184 |
| FAMILY LAW – CHILDREN – PARENTING – wife not participating – change of residence – husband lives in United States – child knows husband’s residence and the local school in United States – wife secretive about where child living – child 15 but views considered and outweighed by importance of a stable relationship with father – sole parental responsibility is only viable order. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Narkis |
| RESPONDENT: | Ms Narkis |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 210 | of | 2014 |
| DATE DELIVERED: | 27 March 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 20 March 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dixon QC |
| SOLICITOR FOR THE APPLICANT: | Cantwell Family Lawyers |
| THE RESPONDENT: | No Appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Buchanan |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Trapski Family Law |
Orders
That B (the child) live with the husband from midday on 31 March 2017.
To give effect to paragraph 1 of these orders, the husband be entitled to collect the child from her school and the husband may provide a copy of these orders to:
(a)The Principal of the child’s school;
(b)All members of the Victorian Police Force;
(c)All members of the Australian Federal Police; and
(d)The Secretary or other authorised officer of the Department of Immigration and Border Protection.
The husband have sole parental responsibility for major long-term decisions relating to the child.
That pursuant to s 65Z(2)(b) of the Family Law Act 1975, the husband has permission to take the said child from the Commonwealth of Australia to live in the United States of America and to otherwise travel with her internationally.
That the husband advise the wife of the child’s residential address and school, authorise the school to provide the wife with reports as to the child’s progress and continue to give the wife those details provided she advises the husband in writing of her residential address.
That pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these orders.
That the applications for parenting orders are otherwise dismissed.
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 (No 3) 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
| Mr Narkis |
Applicant
And
| Ms Narkis |
Respondent
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
These reasons arise out of parenting and property proceedings were begun by Ms Narkis (“the wife”) in January 2014. Mr Narkis (“the husband”) was then the respondent. The proceedings have remained complex because of the attitude adopted by the wife. They have been extant for three years and it is time to bring them to an end. These specific reasons relate only to the parenting dispute.
On 20 March 2017, I rejected the wife’s written request for an adjournment in circumstances where she did not appear but sent to the court what was a set of arguments in the form of a document that could have been sworn as an affidavit. It was not sworn but that was not the basis upon which I rejected the adjournment. I do not propose to repeat the extempore reasons then given. They are published separately. I ruled the husband could proceed on an undefended basis.
The undefended process added to the complexity of the issues because of the need, in my view, to deal with the parenting dispute quickly. In the absence of the wife, I gave leave to the husband to proceed with both the parenting and property applications. Because of some concerns about the evidence relating to the property matters, I have not dealt with that issue in these reasons. My queries will be raised after the delivery of these reasons relating to the parenting matter.
The circumstances under which 14 year old B (the child) is currently living are very troubling. The wife has been evasive, unresponsive and, having regard to the evidence of Ms K to which I turn below, I find she has been putting the child’s emotional and psychological health at risk. That is a sufficient basis to deal with the matters as I have.
It is sufficient to say that in just over three years, and in this court alone, the parties have been involved in approximately 30 hearing days. There have been other proceedings relating to family violence in the Magistrates’ Court of Victoria all of which, on the unchallenged evidence of the husband, have been perplexing. The hearings in this court have included all manner of interlocutory applications. Applications have also concerned contravention of orders.
On 26 August 2014 at a divorce hearing on the husband’s application before the registrar was opposed by the wife. The divorce was granted.
There have also been intervention order proceedings that included the child as a person in need of protection. The husband estimated that there were six such court hearings brought by the wife. If an application was concluded, another application followed.
Accepting the husband’s evidence as I do, he has received visits from police officers over the most innocuous of issues and was charged with offences that were later withdrawn. There is still today, a pending contested application for an intervention order. Some of the intervention orders have been involving allegations of financial or economic deprivation issues.
In the midst of all of this, the parties’ $3 million house was vacated by the wife and locked up. It has remained so notwithstanding the husband has been paying the mortgage. The husband lives in the United States. Just why the house was vacated is somewhat unclear but it would seem that notwithstanding its value, it was unhygienic and uninhabitable. The husband banned by intervention order from attending. There is evidence below in relation to that. The child and the wife have been staying in residences of late including in a house-sitting arrangement but the details have remained secret. Despite orders, the wife refused to say where the child was living and refused to allow a valuer access to the home for “health and safety” issues.
The child was attending a private religious school but the wife removed her from there and placed her in another private school. How that was being funded remains to be seen other than there is a reference to some form of school assistance but at least the husband knows where the child attends.
I accept the husband’s evidence that because of the restricted nature of a variety of intervention orders, he has perhaps sensibly, chosen to step back and not force his relationship with the child until now. He has not had any face to face contact with the child since July 2016 and the only window of opportunity for the court to see what has been happening in the child’s life has been through the glimpses that the single expert psychologist has been able to obtain.
I find the wife has consistently obfuscated about the matters to which I have just referred but more importantly, it leads to the question of how the child is being cared for and by whom. One example of the dilemma is that a former mutual acquaintance of the husband and wife indicated that the child was living at his house but when subpoenaed, he conceded to the Independent Children’s Lawyer that what he had said in a previous telephone discussion, was not correct. One of the expert witnesses to whom I refer below, Dr J, reported that the wife told him that she was not living at the former matrimonial home but gave an address which Dr J put in his report. The husband agrees that she has left that property.
There is a significant question in this case as to the state of the home and indeed, the problem that the husband asserts that the wife is a hoarder. He says that she has contributed if not caused to the uninhabitable state of the property. That was certainly the subject of discussion with the child who in November 2016, told the family consultant that it was then all cleaned up. Subsequent to that conversation, on 2 December 2016, I made an order that the wife provide access to the property for a valuation but she indicated that was not possible. She appealed against the order that I made requiring her to provide the necessary access codes and keys. That appeal is still pending but no application for a stay has been sought.
Once the pathway to trial was begun, the wife did not comply with discovery concerning:
·The XX Trust;
·The estate of her late father Mr SS;
·Details of the art collection in the locked premises; and
·Goods in storage which she estimated to be worth $400,000.
In the process, the husband paid to the wife $500,000, $400,000 of which was deemed to be a part property settlement and the $100,000 was to be categorised at trial. In my view it should all be treated as a partial property settlement. However, it is not at all clear what has happened to that money.
For the period of time since October 2016, I have dealt with endeavouring to set the case down for trial. The wife’s position has always been that the husband has not been disclosing his true financial position and indeed at one stage, she asserted that the husband would not be coming to Australia at all. She maintained that she was not in a position, absent legal representation, to produce the sort of material that the court wanted. She was warned that if she wanted to seek litigation funding, she had to have evidence to establish the necessary proofs. She failed to produce any such evidence.
As previous judgments will now show, despite the various assertions of the wife and having been given opportunities to file material about those issues and in particular those relating to litigation funding, nothing has advanced. In my view, the husband is entitled to bring this to a close particularly because of the issues associated with the child. The wife’s obfuscation in relation to financial matters has meant that the issues associated with the husband’s time with the child had been pushed to one side. There is no justification for that.
The parties’ proposals
As will become apparent, the wife has not filed any material nor is there an extant response in relation to parenting issues.
Because of the orders I made in 2016, outlines of case documents were filed by both the Independent Children’s Lawyer and the husband. In both cases, orders were sought that the child live with the husband and that he be permitted to relocate with the child to the United States of America. There was a disagreement about parental responsibility wherein the Independent Children’s Lawyer split those roles whereas the husband sought that he have sole parental responsibility. In respect of communication between the child and the wife, both the husband and the Independent Children’s Lawyer sought that for a six month period following relocation, time be limited to half of any school holidays and otherwise as agreed. The absence of the wife’s known position ultimately meant that both the husband and the Independent Children’s Lawyer altered their positions.
Non-denigration orders were sought by the Independent Children’s Lawyer but in my view, for the reasons that follow, there is no evidence that would support such orders and in the case of the husband, notwithstanding intervention orders against him, nothing I have heard would indicate that such an order from this court is necessary.
A variety of orders was also sought relating to the exchange of information but I am not at all sure what position the wife holds. Both outlines of case were filed with the court on 24 February 2017 so to that extent, the wife has had them for almost one month. It could not be said that she was not aware of the husband’s proposals nor the views of the Independent Children’s Lawyer.
Evidence upon which the husband and the Independent Children’s Lawyer relied particularly in relation to the need to determine issues surrounding the child came from three independent sources that shed some light on all of the foregoing matters. I turn to those now.
Dr J
Dr J is a consultant psychiatrist and pursuant to orders made on 16 April 2014, he prepared a psychiatric evaluation of each of the husband and wife. He observed the parties and concluded in respect of the husband as follows:
He described no previous or current psychiatric/psychological symptoms. He is by nature an optimist and despite the stressors involved in the current litigation process and separation from his wife, property matters and issues over his daughter, he has managed these without developing signs or symptoms of a psychiatric condition.
[Mr Narkis] impressed as a man who is child-focussed. He remains determined to have contact with [the child]. He described his wife as vexatious and a full-time litigant. Whilst she has thwarted his various attempts to have contact with his daughter by phone and in person he is back in Melbourne as per arrangements to have contact with [the child] via the courts. He does not in any way present as a risk to his daughter, based on my assessment of him.
Dr J then said that the husband did not present with a psychiatric condition.
After seeing the wife on 24 March 2015, Dr J then wrote about the wife that she expressed all of her concerns and detailed her personal history including the details of her relationship with the husband. Of the wife’s emotional state, Dr J wrote that she denied any symptoms of clinical anxiety, panic attacks or agoraphobia. He said:
In the end she has come to understand that this is nothing but “utter disrespect”, “it was crap the way I was treated”.
In an assertion made in a document sent to the court on 20 March 2017, the wife said that she has previously been assaulted by her lawyer as a result of which she had post-traumatic stress disorder. Senior counsel for the husband produced the subpoenaed records of Victoria Police to indicate that there was an altercation with the named lawyer on 22 July 2015. Clearly, at the time Dr J saw the wife, the emotional state to which I have just referred was probably accurate. But it is interesting that the affidavit of Dr J was filed on 24 July 2015, two days after the police intervention in the wife’s apparent assault dispute with her lawyer. It is asserted by the husband that there never has been a suggestion of post-traumatic stress disorder until now. The court had a previous report from the wife’s treating doctor upon whom she sought to rely to adjourn the proceedings in February 2017 but I was unable to find any reference to a problem of post-traumatic stress disorder.
Dr J described the wife as quite controlled and controlling. He said her affect was restricted, pre-occupied and tense and her presentation was variable.
Dr J then diagnosed the following:
[Ms Narkis] denied the presence of any current psychiatric symptoms at a clinical level. I was left with the strong impression that none the less she is a disturbed woman whose personality function is disordered with possible narcissistic, obsessional and paranoid features and a Hoarding Disorder.
The Independent Children’s Lawyer relied upon that evidence and it remains unchallenged notwithstanding 18 months has gone by. It provides insight into what is happening in the wife’s life.
Ms K
Ms K is a psychologist with many years’ experience. She first saw the parties in January 2015 and spoke to the wife by telephone on 27 July 2015. No reference was made to the trauma of the events with her former lawyer which occurred only days before.
Ms K noted that the underlying issue was the physical and psychological risk (if any) to the child if she continued to reside with her mother as distinct from her father. She identified another disputed issue about the capacity of the wife to promote and maintain the child’s relationship with the husband. Those two issues have been highlighted again in these proceedings and are the basis upon which the husband seeks to have the child removed from her mother.
A cursory reading of Ms K’s report about the husband confirms a similar impression of him to that given by Dr J.
Ms K raised with the wife the question of the former matrimonial home and concerns expressed about its state. She told the family consultant that there was nothing new in the hygiene assessment because there was roof damage and water had seeped into the house. Most importantly however, she alleged that the husband had not provided the funds for repair. The wife was apparently keen to live in the house once it was repaired. She described moving to new rental accommodation which was described as “a beautiful home” where she could live without the overflow of the husband’s business items. That last statement flies in the face of the husband’s assertion of the wife being the hoarder.
In her discussions with the wife, Ms K noted that she disputed Dr J’s report on the basis that no other professional including her general practitioner had picked up anything associated with any personality disorder or mental health issue. Bearing in mind the traits that Dr J found, that is probably unsurprising.
When Ms K interviewed the child, B, who was then 13 years of age, was critical of the husband about financial matters.
Ms K noted that much depended on the view that the court took of the evidence and in particular what weight it should give to the diagnosis of Dr J. There is no basis for me to reject the evidence of Dr J and indeed, all of the matters to which I have referred in relation to the wife as a litigant, would support the diagnosis with which he concluded his report. Based upon that, Ms K opined at [57]:
Research evidence suggests that children of parents with personality disorder are at risk because of the parent’s inability to regulate affect, arousal and social relationships but not all parents with a disorder pose a risk. Often risk can be reduced with added support to the parents. [If Dr J’s] assessment is accepted, therapeutic intervention is indicated. However this requires a level of insight by [Ms Narkis] as to her needs and a motivation to seek support.
In my view, that opinion is telling in this case and adds to the urgency with which some action in relation to the child must be taken notwithstanding almost two years has gone by.
Ms K concluded her 2015 report by saying that this was a complex and difficult matter where there were issues of possible mental health matters, high parental conflict and dysfunction and a risk to the child due to the parental conflict and her involvement in that conflict. Having now seen the evidence presented by the husband which is unchallenged and, considering the focus of the wife’s attention has been on financial matters, I find that the involvement of the child in the parental conflict has been the responsibility of the wife. To that extent therefore, the risk to the child is high and in my view unacceptable. That is particularly so where there are no details of where the child is currently living nor how she is managing the absence of her father. That uncertainty becomes important when I consider the husband’s observations about what is happening to the child.
On 20 February 2017, Ms K undertook a further examination so the information the court now has, is quite recent. The child was 14 years of age at this discussion.
Ms K noted that the conflict and litigation had not abated and there was little evidence of a resolution. In relation to the child, the wife said that the child’s welfare was best served by remaining in her primary care “where she has stability and family connections”. It is hard to know what that means in circumstances where no evidence is provided as to the circumstances under which the child is living. It is unclear what the connections are with family members. I find the wife has just brushed the issue aside. That too might not be a matter reflecting urgency except for the concerns expressed by the child’s school, the Department of Human Services, the husband and indeed, a number of prior decisions of this Court about co-operation by the wife.
The wife went on to assert that the child was not safe in the husband’s care because he had allegedly assaulted her. There is no evidence of that. She said that the child was subject to emotional abuse because the husband denigrated her. The evidence that I have heard from the husband is completely contrary to that. Interestingly, the wife told Ms K that she did not oppose the child spending time with the husband either in Melbourne or in the United States. That last concession must mean that she does not have concerns about the capacity of the husband to care for the child. It means that the concerns raised earlier which focus on the wife, are still very much the issue. The wife told Ms K that whilst the husband’s proposal for primary care “sounds plausible”, she questioned (as distinct from denied) the husband’s capacity to be available for the child because he was busy and committed to his work which included a lot of travel. No evidence supported that assertion so I asked the husband about his capacity and he said he had no difficulty in saying that he would be there for the child. He did not see a problem associated with her relationship with the wife. He thought that the child would slip into routine in the United States quite easily.
When Ms K spoke to the child, the child was again critical of the husband but this time relating to passport issues. Those had been raised previously but were obviously innocuous. In relation to the assault alleged by the wife in relation to the child, the child told Ms K that on the last time she and her father were together, he was aggressive towards her, pulling and twisting her arm over a computer which she refused to give back to him.
The child then indicated that she was “sick of all this” and just wanted to stay with her mother. I take into account that this conversation was of a child who is 14 years of age and very intelligent. Ms K noted that the child was defensive of her mother and said that there was nothing about the state of the house that was of concern or that it was unhygienic. She said “it’s not like that anymore” but rather only like that when the family was all living together. That comment flies in the face of the objective evidence that the wife is still not living in the home and would not provide access to the valuer. The child told Ms K that they were housesitting another property. In addition, the defensiveness noted by Ms K has previously been noted by the Department of Human Services and the child’s school.
B indicated that she would not reside with her father but would rather just run away. The husband said that he was not concerned about those statements because the child would simply slip into his lifestyle without difficulty.
Ms K interviewed the new school year coordinator who confirmed that there were no social issues at school but that the child was not progressing well in many subject areas. He described her as not organised and needed to be prompted to get work done. That seems consistent with the many problems of the wife. Recently, the wife was unable to proceed with the hearing because of dramatic tooth problems requiring a variety of surgical interventions. Her doctor described problems of migraines. These all paint a picture of a dysfunction household and the wife offers no evidence to the contrary other than to dismiss concerns about her parenting.
Ms K evaluated the situation as follows. She said that the protracted litigation was not only debilitating for the parents but was impacting on the child who is very much drawn into the parental battle. She opined that the child was not only aware of the adult issues in dispute but involved in them. It is important therefore to assess carefully what the expert was saying.
Ms K described the child as an immature young girl who could be childlike at times. She described her accounts in interview being at times “tangential and lacked cogent argument” in relation to her relationship with her father. The child emotionally appears to struggle with the pressure and burden of the parental battles according to Ms K.
Ms K finally said that the child was protective of her mother and the fact that she was asserting there were no issues of concern could not be taken at face value.
Ms K warned that the change of residence to the husband would bring practical challenges particularly without support from the wife. But on the other hand, the child’s capacity to maintain a relationship with her father so long as she lived with her mother was problematic and influenced by her mother’s attitude.
Ms K said that the child was of an age where she was becoming increasingly independent but also at that vulnerable stage where adolescents needed their parents to guide, direct and support them. Here, the child is aligned with her mother and unable to disentangle herself from the parental conflict.
Ultimately, the expert said that should the mental health concerns raised about the wife be well founded, the child could remain with the wife if she engaged in professional mental health support. There is little prospect of that happening in circumstances where the wife denies it is a problem.
In those circumstances, the evidence is important to consider quickly a determination in relation to the child as there is little likelihood of any change on the horizon.
Dr NN
Dr NN is a micro-biologist who was engaged by the husband to provide an assessment in relation to the mould problem at the former matrimonial home. I accept his evidence.
Dr NN saw the condition of the home and took photographs. He thought that some parts of the house created a risk whilst others were normal but one part of a bedroom was quite hazardous. He described the ceiling swab on the east side child’s bedroom walk-in robe as “severe”.
He said that the issue had to be brought under control inside the home. He said there was a mould problem. Importantly he noted mould in the kitchen although that was benign but the presence of the fungus was unlikely to be due to water damage upstairs in the house. He thought it more likely that the contaminant was caused by the hoarding. That flies in the face of the wife’s dismissive view expressed to Ms K.
It is unnecessary for me to deal with the evidence of Dr NN any further save to say that the wife’s explanation that the problem was due to water damage through a leak in the ceiling is not the only answer. The hoarding noted by Dr NN as a scientist indicates remedial attention is necessary but the hoarding problem was also of concern to psychiatrist Dr J.
Accordingly, in relation to the child, it is not appropriate for her to be living in an environment where there is instability, uncertainty and conflict particularly where she is residing remains obscure. The importance of all that evidence from the experts cannot be understated. Having regard to the fact that the husband has presented all of that evidence and the wife has obfuscated in relation to financial matters alone, it is doubtful whether she will ever be ready to conclude this dispute She has given no indication that she will ever be ready and her latest indications of concern about her own health arising from the assault which she says has caused post-traumatic stress disorder is quite alarming. In my view, the court should not permit the matter to be delayed any further. But the evidence is much more troubling than just the mystique created by the wife and the opinions of the experts.
Intervention orders
Immediately after separation, the wife applied for an intervention order on the basis of an assertion of verbal threats over the telephone. The discussion between the parties arose out of negotiations associated with the transfer of the home. When the husband refused to comply, the wife responded by refusing to allow him to communicate with the child. That no doubt led to an acrimonious argument and the intervention order proceedings brought by the wife then followed. Notwithstanding those matters, the wife allowed the husband to spend time with the child and he took her to America but that was on the basis that he flew the wife as well and provided her with accommodation, a car and spending money. I accept the husband’s version that that was the only way he was going to get to see the child on a regular basis.
In July 2013, there were problems for the husband in endeavouring to set some times with the child when he offered to fly in from America. The wife refused to agree to arrangements until something was set in concrete but the husband could not do that without knowing whether or not upon his arrival he would have the child. In September 2013, the husband paid for the wife and the child to go to the United States so that he could spend time with the child. On one occasion, the wife attended at the husband’s home demanding to be allowed in and insisting that she would call the police and allege that he was withholding the child.
The examples just given indicate that problems were significant for the husband in maintaining a regular arrangement with the child. In 2014, things did not improve. When the husband collected the child for the period of time arising out of the orders that I made in March 2014, the child had no clothing other than that which she stood up in and she did not have her mobile telephone. When the husband contacted the wife to request essential items, the wife refused to assist.
In the same period just mentioned, the wife contacted the husband to demand an opportunity to speak to the child which the husband facilitated but it led to the child becoming upset. The husband terminated the call and around 10.00pm that night, the local police contacted the husband indicating that they were concerned for the child’s welfare and wanted to speak to her notwithstanding she was asleep. The child was shaken by the telephone call with the police officer. There can be no doubt that that was orchestrated by the wife and there was no foundation for any concern.
The wife then made allegations that the husband was sharing a bed with the child and inviting her to shower with him. The husband denied that was true but signed undertakings because he would have not otherwise have been able to spend time with the child.
On 21 July 2015, the wife applied for an intervention order naming the child as a person in need of protection as part of an application for an extension of an order made in 2014. The basis of the application was said to be:
I fear for my 13 year old daughter’s safety and mine if the order lapses. There is ongoing police investigation for breaches.
Disconcertingly, the application sought not just orders to restrain the husband in relation to the wife but also this order:
At the time of making this interim intervention order, the court has also made an order under s 68R of the Family Law Act 1975. The court has ordered that the parenting order made on ../../.. us:
Why that application was sought (if it was) remains unclear and it may even be that the document was drawn from a precedent provided by the court and if so, it was carelessly prepared. Family violence is a scourge in the community and there must be comity between courts but I found the document difficult to follow if no evidence has been presented as to its basis. Just what the allegations are about the child remain unclear particularly having regard to the evidence of the husband and Ms K.
Another order sought was that the husband be restrained from being within 200 metres of O Street, Suburb P. One wonders why that order was being made when the wife and the child were not living there. Inconsistent with that approach was the interim order that then went on to permit anything that could be done by a Family Law Act order not being caught by the intervention order providing the husband did not commit family violence whilst carrying out his entitlements under this court’s order. Ultimately, it does not matter because after a two day hearing in July 2016, the Magistrates’ Court dismissed the application of the wife. However, the wife brought the child to court and presented the court with an affidavit presumably that she had drawn and had sworn by the child. Appropriately, the Magistrate declined to allow the affidavit into evidence. The husband described an effusive and positive interaction with the child in front of everyone at the court.
As will become relevant in a moment, shortly after the dismissal of the wife’s application, the husband was contacted by police investigating a claim by the wife that he had placed some form of device on the child’s telephone to track her. The police advised the husband that there was no merit in the assertion. Despite that, the wife filed a further application for an intervention order on 13 December 2016. This was only days after a hearing before me (see Narkis and Narkis [2016] FamCA 1048).
In the application for the intervention order, the wife asserted in very rhetorical terms that the husband was exerting “economic duress and emotional/psychological abuse” on the wife. Her assertions included that that abuse included keeping the wife and the child under surveillance. How that assertion could be made remains perplexing having regard to the investigation of the police only months before.
There is a consistency between the wife’s behaviour which the Department of Health and Human Services referred to as “paranoia” and that which Dr J had noted. Dr J described the wife as “a woman of limited insight” who had attempted to hide her disorder and thereby represented a risk to the child’s health “as detailed (DoHS)”. I understand that to mean that Dr J was supportive of the views of the Department of Health and Human Services.
In her application for the intervention order signed in December 2016, the wife said:
(The husband) is still emotionally and psychologically abusive, economically abusive, controlling and dominating. He is abusive of the child especially because of the IVO, including in about July 2016 thereby causing emotional and psychological abuse of the AFM.
Those are not facts; they are assertions and it is difficult to see how any court could make a determination based upon those sorts of statements. No doubt a court would hear more comprehensive evidence but I find it puzzling as to just what the wife is asserting about the husband’s conduct towards her and towards the child. Nothing in the evidence I have heard from the husband indicates that he has in any way acted as such. Further, no evidence has been presented to this court by the wife in two years that I can see from reading any of the judgments of the various judges of this court since 2014.
The wife’s intervention order application is now listed later in May 2017. In my view, it may have to deal with the application in the absence of the husband and the child in Australia. No application has been made by the husband under Division 11 of Part VII of the Family Law Act 1975 (Cth) (“the Act”) in relation to any inconsistency between the parenting order that I am now making and any intervention orders. I have therefore presumed that the husband accepts that it is not necessary.
Relevant background
Both parties were born in Australia. The husband is aged 60 and the wife 51. They married in 2002 and the child is their only child.
The relationship came to an end in February 2013 and the wife commenced the proceedings relating to property in January 2014. It was soon after that parenting problems began to surface.
Conflicts in the litigation
As early as March 2014, the court had to deal with a dispute over the husband’s time with the child. The matter came before me in circumstances where the husband sought a block period of time during holidays of nine days but the wife would only agree to four. Another dispute related to how much time the husband could care for the child in circumstances where he wanted a block period of seven days and the wife offered six hours on one day of a weekend. I found the husband’s proposal to be in the best interests of the child.
In December 2014, the parties appeared before Johns J where her Honour made restraining orders against the wife from “disrupting or interfering with the husband’s time” with the child. Her Honour said:
13.Further, I note in the report provided by the Department of Human Services that the school has reported to the Department that there are concerns raised as to the impact of the mother’s behaviour on the child in the school environment and about the child being guarded and not willing to talk about her home life and further, her being defensive of the mother and negative in her attitude towards the father.
14.That report highlights the need for the father’s relationship with the child to be protected. The order that I make will be an interim order only. There will be a notation that that order is made with an express denial by the wife as to the necessity for the same. Accordingly, that is an order that will be made by the Court.
In July 2015, the parties appeared before Bennett J where the husband had brought contravention applications against the wife. The wife was absent but represented by a solicitor who sought an adjournment on the basis of his misunderstanding of the nature of the proceedings. Her Honour refused that application. Significantly for the purposes of showing how the wife approaches proceedings, her Honour noted the following:
31.I am informed by counsel for the husband that the contraventions are continuing and that, otherwise, the husband is not spending time with [the child] pursuant to extant parenting orders, although it would appear that his complaint about the last two weeks of school holidays is the subject of the upcoming proceedings listed on 1 September 2015.
…
38.At 2.00 pm Mr Lennon informed me that the wife was not able to attend court and that “[the wife] had indicated to [him] that she is unable to get back from the peninsula”. I asked Mr Lennon where the peninsula was in relation to Melbourne and he said that his client had not actually disclosed her whereabouts to him (or words to that effect).
39.I directed Mr Lennon to contact his client by telephone to ask for her, and the child’s, precise whereabouts, to which he responded that he had sought those instructions but “she would not disclose it”. I pressed Mr Lennon for a street address and directed that he call the wife again.
40.Mr Lennon returned and informed the court that his client is at [JJ Town]. After one further telephone call by Mr Lennon, it was clarified that the wife had instructed Mr Lennon and she and the child are actually in [JJ Town], in the [ZZ] district of New South Wales. That is approximately a 17 hour journey by car from Melbourne.
The rest of the proceeding before Bennett J is not relevant for my purposes.
In 2016, the parties were before Stevenson J but this time on an application brought by the wife against the husband alleging that he had contravened orders. The wife was unsuccessful. This dispute seemed to have arisen out of a trip to City D in the United States where the husband had taken the child. The husband had provided all of the details as to the trip and facilitated telephone communication. But the husband took the child to City QQ which was not on in the itinerary albeit only a few hours away from where he was based. That gave rise to the wife’s application that he be dealt with for a contravention of orders. Stevenson J went further at the conclusion of the proceedings then just dismissing the wife’s application because, at the urging of the husband, restrained both parties from filing further applications without leave of a court. That order has been honoured in the breach.
These specific examples show not just the acrimonious nature of the proceedings but the manipulative way in which the wife deals with the husband. That conduct is certainly consistent with the expert observations of Dr J.
It is understandable in the circumstances why the husband has not pressed for time with the child since July 2016 leaving aside any questions of his entitlement to bring applications by virtue of the injunctive orders of Stevenson J.
The evidence of the husband about parenting issues
In a very long affidavit, the husband set out the background of the difficulties that he has had in maintaining his relationship with the child because of the conduct of the wife. It is important to observe that the absence of the wife from this hearing has meant that the evidence of the husband has been unchallenged. Unchallenged evidence does not necessarily mean that a court will automatically accept it but in this case, everything I have heard has a plausible ring of reality and truth about it. Accordingly, what immediately follows are findings of fact.
I am satisfied that the wife is a compulsive hoarder and has been throughout the relationship. During the relationship, people were engaged by the parties to clear out the home at various times and an extraordinary amount of property was stored. The conditions in the home were not good and the hoarding problem continued after separation. The child told the husband after separation that she shared a bedroom with her mother because the rest of the bedrooms in the house were full of items of property. The child told the husband that she rarely had friends come and stay at the home due to its state. Whilst the child told Ms K that the problem has now been overcome, there is no evidence from the wife to confirm that.
Such was the concern after separation that the Department of Health and Human Services intervened but they were unable to obtain entry to the home nor assess the child’s living conditions. They contacted the school and similar concerns were expressed to them as those expressed to Ms K. Because of the fact that the proceedings were before this court, the Department chose not to remain involved.
The Department’s involvement arose from an order under s 69ZW of the Act made by Johns J. By virtue of the report arising from that order, the evidence is admissible. That report indicates that the school informed the Department that the child had been particularly defensive of her mother and very negative towards her father. The Department was told that the child “frequently fabricates the truth” in relation to protecting her mother so as not to appear differently to anyone else. That statement is consistent with the concerns expressed by Ms K and in particular, her reference to giving little credence to the views of the child notwithstanding her age because at times she appears quite childlike. It is also consistent with the evidence of the husband that the child told him she could not have friends over because of the state of the house. The school remained concerned about the child’s emotional and psychological wellbeing.
It was the Department’s view that there were concerns about the child’s emotional and psychological wellbeing because they suggested that she was exposed to significant environmental neglect, chaotic home environment, lack of stability and the wife’s deteriorating mental health and alleged hoarding behaviours.
When the Department intervened in the child’s life in 2014, it was not the first time. In early 2013 as a result of a report about the wife’s health and physical discipline issues, an assessment was undertaken of the child but the school agreed to monitor the child so the Department took no further action.
At the end of 2013 however, the matter arose again. There was no demonstrated impact of harm on the child at that time so again, the Department felt there was no role.
There were five reports to the Department over a period of time around when this litigation commenced. Concerns were expressed about the likelihood of emotional harm to the child as a result of exposure to the problems particularly associated with behaviour of the wife. One concern expressed by the Department was that the child was being provided with significant material gifts from the wife and the school noted that conversations were occurring between the child and the wife in a secretive way all of which added to intrigue and concern.
On another occasion in June 2014, the child was dumped by her mother outside of the house where the husband was. She was standing in her pyjamas, barefoot and holding a passport application requiring the husband to sign it. The child was cold and crying and the wife drove off. When the husband endeavoured to contact the wife, she refused to take his calls. Notwithstanding that, and having put the child into a safe place for the night, police arrived at 1.30am looking for the child.
Proceedings in 2015
In 2015, things did not improve. This was the period of time during which contravention proceedings came before the court. This time they were heard before Berman J but they included significant other matters associated with the financial proceedings. All of the allegations were brought against the wife. His Honour found some of the allegations proved and in respect of those, the wife maintained she had a reasonable excuse which his Honour generally rejected. Indicative of the nature of the problem, the following matters are from his Honour’s judgment:
71.The respondent’s position does not explain the lack of response to the numerous correspondence forwarded to her in relation to the child’s school enrolment.
72.There is no suggestion that the respondent sought to amend the order when it became clear that the applicant was insistent upon compliance.
73.It appears that the respondent’s position was to provide no information and deliberately so, but in circumstances where her refusal was not the subject of explanation. The respondent has admitted the contravention and I find that she has not established a reasonable excuse on the balance of probabilities.
The nature of the husband’s relationship with the child
On a positive note, each time the husband and the child have spent time together, it has been successful. There is no evidence to the contrary. In the United States, the trips have been successful.
In 2016, as I have already observed, the child was removed from the private school that she attended and unilaterally placed in her present school. There is no recognition of the husband’s entitlements as a parent and responsibilities in relation to the care of the child by the wife.
The husband tried to Skype and telephone to speak to the child consistent with the orders of the court but he observed that his communications went unanswered. Having found his attempt futile, in the middle of 2016 he ceased. That was in the face of the orders of Stevenson J of 16 June 2016 where her Honour indicated that the wife was to make the child available on two occasions per week for that communication. The wife was responsible to telephone the husband. In the sense of any form of negotiation, when the wife did indicate that the husband could call, the local time in the United States would have been in the early hours of the morning. That was impracticable and importantly unnecessary.
The husband says that the child wants to speak with him but is not permitted to do so. I find that it is more likely than not that the child is neither encouraged nor reminded of her father and the secretive nature of the wife’s control of the child is very disconcerting.
A future in the United States?
It is clearly the proposal of the husband that he take the child to live in the United States of America. He has a work visa which enables him to stay there until November 2018. He has already taken the child to the local area where he lives and they have attended three schools together and the child has spent a day in two of them. The husband is very much of the view that the child will settle very quickly because on the last occasion, she made friends very easily in the school she attended.
The husband gave evidence that there is a position available for the child this year and the fees would be paid by him. When I asked what impact such a move would have on the child, he had no doubt there would be a smooth transition. When I asked how the child would deal with the absence of her mother, he again thought there would be no problems. Indeed, the husband’s view is that the wife will move to the United States if the child goes there as well.
One of the orders proposed by the husband (albeit ambivalently) and initially supported by the Independent Children’s Lawyer but later hesitantly, was that the child have no contact with the wife for some time. In his oral evidence, the husband did not think that was a good idea. His view is that so long as he can get control of the child’s life so that her mother cannot interfere and destabilise her, it will be a successful move. He readily accepted that with the child’s age, banning telephone communication would not be successful. I assess the husband as being sensible and pragmatic and very conscious of the child’s needs.
Capacity as a parent
There is no evidence to indicate any concerns about the husband’s capacity. He has cared for the child for periods of time in the United States as well as in Australia. The relationship might be a little uncertain at the moment but he was enthusiastic that it would not be a problem once the child was in his care. He was not at all concerned about the child’s age in terms of any form of defiance. His view is that the child will transition easily and comfortably. I am also comforted by the fact that the wife has been content for the husband to have the child in his care in the United States for block periods of time.
Ms K expressed no concern about the husband and no transcripts of evidence have been provided by the wife arising out of intervention order proceedings wherein the child has been named as a protected person such as to indicate that she was at risk in some way of physical or emotional harm from him.
How should any change be implemented?
The timing of any changeover was also the subject about which I questioned the husband. He was reluctant to see the child removed in the night in some form of cloak and dagger arrangement. His view was that the child should be given notice so that she can prepare herself and the most appropriate time for that would be when school concludes for Term 1 in Australia enabling her to have the holiday period and a smooth transition into school in the United States.
All of this evidence is clearly untested but I have never had an opportunity to understand what the wife’s case is to the contrary. Whilst it might be suggested that the wife has been unable to provide material for a variety of reasons that have been referred to in recent adjournment applications and judgments that I have given, the only evidence before the court that the wife has ever presented has been in relation to the contravention proceedings. In those cases, the wife must be seen to have been unsuccessful in every case. The synopsis I have given of the evidence of Ms K would indicate that the wife is not resistant to a relationship between the husband and the child but the difficulty is that the wife’s constant delays and stalling, have made any relationship between the husband and the child problematic.
Legal issues
All children are entitled to have the benefits of a meaningful relationship with both of their parents (ss 60B and 60CC(2)). The wife’s constant behaviour of obstructing the relationship between the child and the husband has thwarted any benefit that the child can have with a meaningful relationship with her father.
Section 60B(2) provides that one of the principles underlying the objects of Part VII of the Act are that children have the right to know and be cared for by both their parents as well as having the right to spend time on a regular basis with, and communicate on a regular basis with, both their parents. Neither of those principles has been fulfilled by the wife and it is clear on the evidence that I find, the wife has no intention of promoting any relationship between the child and the husband and that unless the court intervenes, the child will have no relationship with her father into the foreseeable future.
Section 60B(2) also provides that parents should agree about the future parenting of their children. It is a pointless exercise in this case for the husband to endeavour to negotiate any form of parenting arrangement with the wife. She is obstructive and unwilling to participate in proceedings where her views can be examined.
In my view, there is little doubt that unless the child lives with the husband on a fulltime basis, his relationship will end. Conversely, if the child lives with the husband, I am satisfied that he will encourage a relationship between the child and her mother but it needs to be controlled so that the wife cannot behave in the way that she has to date.
Section 60CC considerations
I am satisfied that the husband is a responsible parent and that he has the necessary capacity to care for the emotional as well as physical needs of the child. I am also satisfied that despite the child’s age and her views, her state of maturity is such that the court should not give her wishes any significant weight on the basis that she is manipulated by her mother but when given an opportunity to have a close and personal relationship with her father, she readily engages.
There is no evidence before the court that the husband has been other than generous in his support of the child in a financial sense. The child has been fortunate to be provided with international holidays and does not seem to want for anything. To the extent that the wife has a different view, she has failed to provide any such evidence.
The court should no longer be prepared to simply accept assertions and the wife has had ample opportunity to provide affidavit evidence to show just what is going on in the child’s life and how the child is being supported. The obfuscation and the refusal to allow anyone to know where the child is, cannot continue because of the evidence of Ms K, Dr J, the Department of Health and Human Services and the observations of the child’s school let alone the observations of the husband.
Section 60CA
Section 60CA of the Act provides that a court must consider the best interests of the child as the paramount consideration when making a parenting order. I can see no other order serving the child’s best interests than that she lives with the husband. The move to the United States is not an insurmountable hurdle because I accept the husband’s optimistic view that the wife will move there. In any event, the child is soon to turn 15 years of age so her childhood years are therefore almost over.
It is important that the child have the stability of the last few years of her secondary education unencumbered by exposure to the acrimonious relationship fostered by the wife and by the disruptive conduct of the wife in secretively moving around. It is important that the child be removed from the environment where her mother is constantly involved in intervention orders which have no obvious substantive basis. I have no doubt that the relationship between the child and her mother can be continued even electronically bearing in mind much of the time that the child will spend during the day will be in school.
To the extent that the wife wanted some form of time with the child, I do not consider it necessary to make any orders on the basis that the husband, unlike the wife, appears to be cooperative in making those sorts of arrangements.
Parental responsibility
Section 61DA of the Act provides that when contemplating a parenting order, the court must apply a presumption that it is in the best interests of a child that the parents have equal shared parental responsibility. In the case of the court accepting that there are reasonable grounds to believe that a parent has engaged in abuse of the child or another person who was the member of the parents’ family or family violence as it is described in the Act, the presumption does not apply (s 61DA(2)).
Family violence has been extensively covered in the reasons set out above. The matter of the child’s complaint about the father and she having what could only be described as a tussle over a computer does not enable me to find that there are reasonable grounds to believe that the husband has engaged in abuse of the child. There is no evidence that I can find to justify a finding that the husband has engaged in abuse of the wife.
Family violence is defined in s 4AB of the Act to mean violent, threatening or other behaviour by a person that coerces or controls the family member or causes the family member to be fearful. Evidence relating to a person’s fear must be objectively tested. I do not find there is anything in the husband’s behaviour which could be described as violent, threatening or coercive and controlling. Whilst the wife has articulated that she is fearful of the husband, the objective evidence which in this case has only come from the husband and the assertions of the wife through other witnesses whose evidence I have considered, does not justify a finding of fear.
Various examples of behaviour that might constitute family violence are given in s 4AB(2) of the Act but even an examination of those would not justify any of the primary definitions in s 4AB(1). The behaviour includes the unreasonable withholding of financial support needed by a person to meet their reasonable living expenses at a time when that person is entirely or predominantly dependent upon the person for financial support. Absent some indication from the wife as to how she is managing to support the child and herself where there is no immediate application for spousal maintenance on foot, I could not be satisfied that the husband has been a person who has committed family violence.
Another example of behaviour in the Act is said to include denying the family member the financial autonomy that he or she would otherwise have had. Again, absent some evidence from the wife addressing that issue, I am not sure how the wife could have put such a proposition.
One might question whether the wife has been involved in family violence against the husband in the sense of preventing the child from making or keeping connections with the husband and his children (s 4AB(2)(i)) but the husband does not argue that in this particular case.
In the circumstances, there is no basis for me to mandatorily rebut the presumption.
Section 61DA(4) gives a discretion to the court to rebut the presumption if there is evidence that satisfies the court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. The most obvious evidence that indicates why it would not be in the best interests of the child for the parties to have that responsibility lies in circumstances where the wife has not only deprived the child of an opportunity to have a relationship with her father but also to include him in the decision-making processes. The wife unilaterally removed the child from school and has not communicated with the husband any details about the child’s welfare. The most fundamental issue of welfare must lie in providing detail about where the child lives.
Section 65DAC provides that if under a parenting order, parents are to share parental responsibility and it relates to a decision of a major long term issue, the order is taken to require the decision to be made jointly by those persons. It requires them to be consulting with one another in relation to the decision and make a genuine effort to come to a joint decision about that issue. For the reasons just set out, there is no prospect that I can see that the wife will consult the husband let alone endeavour to make any decisions about the child’s welfare. The very fact that she removed the child from school and has not indicated where the child is living are clear indicators of a lack of desire to have the husband involved in decision-making about the child.
Parental responsibility means all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Each of the parents of a child has that parental responsibility. It ought be obvious from the reasons that I have set out above, the wife is denying the husband an opportunity to fulfil his responsibilities so defined.
On the basis of the non-application of the presumption earlier mentioned, there is no basis for me to then make an order for equal shared parental responsibility.
It is important however that decisions are made and on the basis that I intend that the child shall live at least until 2018 in the United States of America, notwithstanding the optimism of the husband that the wife will move there too, it is in the child’s best interest that decisions are made promptly and with her welfare in mind. I do not have the confidence that the wife will make those decisions or participate in those decisions in relation to the child. On that basis, it is clear that the husband must have sole parental responsibility.
Conclusion
In my view it is in the best interests of the child that she reside with the husband, be able to move to the United States with him and that he make decisions about her future. Whilst there was a suggestion that the wife should be consulted about decisions and advised of what decisions have been made, the absence of the wife means that it is not necessary for me to try and craft some order along those lines. In addition, I have accepted the husband’s evidence that he would discuss matters with the wife to the extent that she showed sufficient interest.
Interim or final orders?
Section 60CC(3)(l) requires a court to consider whether it is preferable to make the order that will be least likely to lead to further proceedings relating to the child. A major question is whether the order should be of an interim nature or final.
An interim order in this case would give the child an opportunity to settle in with her father and into a new school and home environment. The court could test whether that was successful having regard to her age, her stated views to Ms K and also the wife’s co-operation with the husband in respect of parenting the child. The child told Ms K that she would run away if forced to live with her father. The husband is well aware of all of those statements. If interim orders were unsuccessful, a review by the court could then make different orders. A review of final orders is an entirely different problem because of the needs to point to significant changes of circumstances.
In this case, I find that interim orders would not be sensible having regard to my view that the husband is optimistic if not confident that the transition will be straight forward. The urgency that has brought this application to a head has highlighted the obfuscation of the wife such that I have real doubts that she will ever co-operate in respect of focusing on what this child needs to enable her to complete the little bit of her childhood left.
I am satisfied that having regard to the time until the child’s 18th birthday and the need for her education to be a major focus, final orders should be made so that plans can be put in place for her final secondary schooling.
I certify that the preceding One Hundred and Twenty Five (125) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 27 March 2017.
Associate:
Date: 27 March 2017
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