Narkis and Narkis (No 3) - [2017] FamCA 184

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

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…

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: [2017] FamCA 184
Decision Date: 27 March 2017

CaseChat Overview and Summary

In the matter of *Narkis and Narkis (No 3)*, Cronin J of the Family Court of Australia made orders concerning the living arrangements and parental responsibility for a child, B, following applications for parenting orders. The dispute involved the husband and wife regarding the future care and upbringing of their child.

The court was required to determine where the child, B, would live, who would have sole parental responsibility for major long-term decisions, and whether the husband should be permitted to take the child from Australia to live in the United States of America. The court also considered the extent of information to be shared between the parents regarding the child's welfare and location.

Cronin J ordered that B live with the husband from 31 March 2017, granting the husband sole parental responsibility for major long-term decisions. Crucially, the court granted the husband permission, pursuant to s 65Z(2)(b) of the *Family Law Act 1975* (Cth), to take B from Australia to live in the United States and to travel internationally with her. The husband was directed to inform the wife of B's residential address and school, and to authorise the school to provide the wife with progress reports, provided the wife reciprocated by providing her residential address in writing. The court also noted that particulars of the obligations and consequences of contravention of these orders were set out in an attached Fact Sheet, pursuant to ss 65DA(2) and 62B of the *Family Law Act 1975* (Cth). The applications for parenting orders were otherwise dismissed.

Orders

Orders of the court

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;

(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.

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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