Narkis and Narkis (No 3) - [2016] FamCA 1048

FAMILY COURT OF AUSTRALIA

NARKIS & NARKIS (NO 3)

[2016] FamCA 1048

FAMILY LAW – PRACTICE AND PROCEDURE – Interlocutory applications by both parties pending final hearing in February 2017 including for “Letters Rogatory”, discovery, litigation funding, injunctive relief, requirements for personal attendance of husband who lives overseas, payment of health insurance for the wife and the child and similar matters – Where the judge suggests that the evidence provided by the self-represented applicant is insufficient to make the orders sought and the wife then seeks an adjournment – Where some matters are able to be determined and orders made – Where the husband’s application for keys and access to a property is necessary to enable the February trial to proceed – Reasons given ex tempore.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Narkis

RESPONDENT:

Mr Narkis

FILE NUMBER:

MLC

210

2014

DATE DELIVERED:

2 December 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

2 December 2016

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Swart

SOLICITOR FOR THE RESPONDENT:

Cantwell Family Lawyer

Orders

That the wife’s application filed 25 November 2016 (save paragraph 11, 13 and 14) is adjourned to 10.00am on 2 February 2017 for the determination of all outstanding interlocutory issues.
That save for the orders sought by the husband as set out below and granted by the court, the balance of the husband’s application filed 1 December 2016 is also adjourned to 10.00am on 2 February 2017.
That the objections of the wife to the release of information provided under subpoenae by Westpac Bank and the Department of Immigration and Border Control are both dismissed and any information provided thereunder is released to all parties for inspection and copying.
That by 4.00pm on Wednesday 7 December 2016 the wife provide to valuers RR the access key and the alarm code to the real property at O Street, Suburb P together with the names of the engineers involved in the repair of, alteration to or protection of the said property and upon the valuation being completed by RR the key be immediately returned to the wife.
That by 4.00pm on Wednesday 7 December 2016 the wife provide to the solicitors for the husband by email the residential address of the child E.
That the conciliation conference listed for 7 December 2016 is vacated.
That the application by the husband (paragraph 2) for the sale of the property at M Street, Suburb N is dismissed.
That by 4.00pm on 7 December 2016 the wife provide by email to the solicitors for the husband a copy of the inventory of assets and liabilities of the Estate of Mr SS along with a copy of his will and copies of all correspondence to and from the wife and the legal representatives acting on behalf of the Estate of the Late said Mr SS.
Reserve the husband’s costs to the return date.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 210 of 2014

Ms Narkis

Applicant

And

Mr Narkis

Respondent

REASONS FOR JUDGMENT

Before me is the application of the wife filed 25 November 2016, and the husband’s response to it filed 1 December 2016. Both documents were filed within the times prescribed by the orders made on 4 November 2016. The substantive parenting and property proceedings are listed for final hearing on 27 February 2017 for five days.
The interlocutory applications arose out of the hearing on 4 November 2016 and mainly for two reasons: first, the wife asserted that the husband had not provided proper discovery; secondly, she asserted that the Court had not dealt with a number of applications and issues associated with subpoenae that she had issued over the past two years. In respect of the latter, after methodically proceeding through the Court’s various volumes, it is clear that there are no such outstanding applications unresolved, at least, from the Court’s viewpoint.
The subpoenae are a different matter. The wife alleged not only non-compliance by recipients of legitimately issued subpoenae, but also that the Court had not finalised them by way of a hearing. That complaint too, was unfounded, as, on the two hearing dates to which compliance with the subpoenae had been adjourned, the wife did not attend and the relevant subpoenae lapsed. The complaints about the Court’s tardiness (if that is what they were) are inaccurate.
There are, however, two objections to subpoenae issued at the request of the husband returnable today; those subpoenae were directed to the wife’s banker, the Westpac Banking Corporation, and to the Department of Immigration and Border Control concerning international movement of the wife and the parties’ child, known as E. The objections to the release of any information so provided were filed by the wife. She opposes the release of the information produced in both cases and cites 13 or so reasons, all of which can be condensed to one, which is that she wanted to obtain legal advice and legal representation.
The wife has been aware of the subpoenae for at least four, if not five, weeks. Nothing further has been submitted about the objection, but she still maintains the information should not be released. She did however submit that there was no relevance to the material but counsel for the husband pointed to the financial aspect of international travel and its connection with the current application by the wife for litigation funding. It is clear from one previous interim distribution of money order that the wife has had $500,000 available to her, raising the question, at least in the husband’s mind, of how her travel was afforded since 2013.
The subpoenae also seeks travel details in relation to the child. As counsel for the husband observes – and, I think, correctly – passports do not disclose details of travel. Indeed, the wife also points to the fact that she wants details about the husband’s passport and, specifically, in relation to a destination, which (it seems to be agreed) does not stamp passports for security reasons.
Relevance is the determining issue and it is a matter of discretion. The test to be applied is whether the court can find “apparent relevance” in the documents sought to be inspected. Their release does not necessarily mean that their contents will ultimately be admissible. Privacy has not been raised as a basis for the objection nor could it be here. Thus, the legal advice issue relied upon by the wife has limited significance. I am satisfied that there is apparent relevance in the material produced under the subpoenae for the reasons articulated by counsel for the husband and the documents should be released for inspection and, if necessary, copying.
I turn back then to the specific application of the wife. She seeks 22 orders. In canvassing them sequentially, it became obvious that the evidence, such as it is, does not support the orders in most cases. The wife said she had done another affidavit overnight which would justify the making of some of these proposed orders. Without having to rule on whether that affidavit should be allowed to be read into the evidence, the wife asked me to adjourn her application to enable her to put a proper application before the Court along with comprehensive supporting evidence. Even subsequent to that discussion, there has been dialogue about wanting certain orders today and there are three in particular that I shall deal with.
In passing, the wife complains that she is wasting her time and is not being fairly treated. I reject that. Reference to the transcript will indicate the laborious nature I have followed of endeavouring to identify the issues in dispute, the contemplation of the relevant power to be exercised in relation to proposed orders and the various requests to be directed to the appropriate evidence.
The absence of legal representation here is obviously a handicap for the wife, but I cannot overcome that, nor is it a judge’s function to run the case for an unrepresented litigant. The level playing field, so described, is important, but the wife here is not a novice at this litigation. She observed that the husband is a litigious person and, indeed, points to some of that with which he has been involved. There have been numerous applications in this Court. In some cases, the wife has been represented by lawyers and, in others, not. Indicative of the demand these parties together have put on the Court’s resources in a few space of years is the fact that Stevenson J ordered neither party was permitted to bring any future application without leave of a judge. The wife’s earlier application ignored that but then again, so did the registry of the Court in issuing it. Having issued the wife’s application, the Court then accepted the husband’s responsive documents. It is now apparent that the order of Stevenson J made under s 118 of the Act still stands and both parties need leave nunc pro tunc.
Notwithstanding the tight timetable and the closeness of the final hearing, the wife must be given an opportunity to get her house in order. As such, her adjournment should be granted, but more importantly, she needs to amend her application to provide not only precise interlocutory orders that are within the power of the Court, but also evidence to support such orders.
The wife also opposes the orders sought in the husband’s response but when one examines some of the proposed orders, there is no point in them being adjourned, as the evidence is before the Court and despite opposition from the wife, that evidence is supportive of the orders being made now because of the closeness of the final hearing.
I therefore now deal with the parts of the wife’s application which can be dealt with and do not require an adjournment and I shall then turn to the proposals of the husband.
In item (11), the wife seeks an order that:
The husband produce copies of all tickets, hotel accommodation documents, other travel documents, passport, including additional pages, such as for [travel overseas], within seven days of the date hereof.
In my view, an order in those words will not produce what she is seeking. Because it is said by the wife that the husband is a wealthy man who travels extensively, the appropriate order is that the husband provide to the wife booking confirmations, tax invoices, copies of his passport, including the entry pages, and visas or visa waivers, providing those documents are still in his possession, power or control in relation to the period subsequent to

1 January 2012.
The second order the wife seeks is in relation to the City D property and the husband’s living arrangements because she says that that property appears as available for rental. No doubt that issue will be a matter for the trial and as the husband will need to give indications as to where he is living and where he would propose that the child live (if she lived with him) and that evidence is not far away from being provided in the final trial evidence. It seems pointless to make the order in terms of that particular paragraph.
Proposed order number (14) seeks details of the source of the husband’s funding of his own legal costs. The wife describes in the proposed order that he has spent “hundreds of thousands of dollars” in legal costs. That order should be made as it is still the law (s 117 of the Act) that parties fund their own legal costs from their own resources and, to the extent that joint resources in some way are used, that issue would need to be dealt with by the relevant trial judge.
In this case, if indeed the husband has spent hundreds of thousands of dollars, the most important question is not how much he has spent, but where those funds came from. The timing of the payment of those payments is also relevant because there will be some payments from his own resources or his earnings subsequent to separation and they may fall into a different category under the issues that the Court has to deal with in respect of money or resources that the parties no longer have but that they certainly have had. An order that the husband provide the source details of any legal costs that he has paid since these proceedings began should be made.
The balance of the proposed orders do not need to be recited, but I find that there is little, if any, current evidence before the Court that would enable me to make the orders sought leaving aside whether the necessary power is there to make those orders. One such example is under the heading of “Letters Rogatory” and the discussion that the transcript will, no doubt, reflect I had earlier this morning with the wife.
Having regard to the finality of the trial that is coming up in February, it is important that all of these issues be addressed and the wife has approximately two months to get her house in order and prepare a proper application. Notwithstanding Stevenson J’s order, I will give the wife leave to file that amended application and so too the husband any response thereto.
I turn then to the application that the husband filed in response to the wife’s application. Apart from seeking that the wife’s application be dismissed, he sought a number of orders. The first is that properties at M Street, Suburb N, be placed on the market and sold and the proceeds be divided. The difficulty which is properly conceded by counsel for the husband is that, even if that marketing exercise and sale commenced immediately, because of the Christmas period, it is most unlikely that the settlement would have taken place by the time that the matter comes on for trial. No doubt if it did sell, the parties would know the value but that would not assist in respect of having money available for distribution.
There is very little evidence, other than the fact that the parties dispute who has what wealth, but it seems that making the order for sale is not going to necessarily be productive of anything. It does mean that the parties have to have it valued but that seems to me to be a more sensible approach, bearing in mind there is no apparent prospect of the settlement of any sale between now and the trial. I decline to make order number (2).
Order number (3) is a controversial order. It seeks that the wife provide access to a valuer who was ordered to undertake a valuation of O Street, Suburb P. The wife previously opposed the valuation on the basis that the property was in such a state that access could not be granted to it. As I observed at the time, and I repeat now, that is a matter for the valuer to work out. Indeed, if he cannot get access to the property for a proper valuation, no doubt he would say so and, if necessary, a kerbside valuation may have to suffice. The dilemma is that the evidence before me is that the wife has not been responsive to the valuer’s telephone requests. The wife’s submission although not in evidence is that she has received no voice recorded messages as alleged by the valuer and it may even be, in her view, that the valuer has got the wrong telephone number. Be that as it may, it is clear she opposes the provision of access regardless of what has been going on.
The only solution is that the key be provided along with the alarm code, and that the valuer have that information and the key only for so long as is necessary to undertake the task. If he is unable to access the property because of danger, he will no doubt find that out from the engineers. I intend to direct the wife to also provide to the relevant valuer, the names of the engineers with an authority to enable the valuer to access information as to whether or not it is dangerous and/or inappropriate to enter the property. I do not see any other reason why the order that I made back in November should be otherwise thwarted.
I propose to make an order along the lines of proposed order (3), save that I do not propose to make an order that a locksmith be engaged to obtain entry, because if that were to occur, there would be a third party involved who might be in some legal difficulties. It seems to me that the obligation falls on the wife and that is why I propose to make the order in relation to her.
I do not propose to make order number (4) sought by the husband relating to invoices associated with any repairs to O Street. It seems unnecessary for that to occur on the basis that the engineers will no doubt be able to explain to the valuer what has occurred. .
Order number (5) seeks that the husband be at liberty to enter O Street to retrieve his personal documents. Having regard to all of the concerns I have about just what state that property is in, I would not be prepared to make that order.
Order number (6) seeks a specific order that the residential address of the child, the child, be disclosed. The wife’s opposition to this is that she wanted to seek the advice of the lawyer for the child (a person who has responsibility for the child’s interests in other court proceedings) before indicating those details. Over the luncheon break I am told she made inquiries of the particular lawyer, and was unavailable to get advice (if it could be given bearing in mind that she is not the client) and therefore that lawyer’s position is unknown. There are two important points to make here. The first is that it is common ground that each of these parents has parental responsibility unremoved by any order of the Court. On that basis alone the husband should have some right to know where his child is, particularly in circumstances where, as I understand it, he is about to have some sort of contact arrangement over the summer period. The second point is that even if the lawyer for the child indicated that she – the lawyer – did not want the husband to know where the child was living, that would not have any influence on this at all. There are no security issues here, as I can understand it, notwithstanding there is a pending intervention order. To the extent that the husband knew where the child was, it would not affect the making of the intervention order.
The mystique about all of this also arises from the fact that in filing her affidavits, the wife shows as her address the O Street property. On any view of what I have been told this morning, she is not living there. She says that that is her address for service and/or delivery of documents and her post still goes there. That is not to the point. The reality is the child is obviously living somewhere, and on that basis the husband has an entitlement to know where it is absent some specific security concern thus far not expressed.
The next order is that information or documents produced under subpoenae be released and I have already ruled in respect of that. Orders were then sought in relation to the valuation of international assets. I have no idea whether those assets exist or not, and I am not making any determination about their existence but before making an order that anybody be appointed as a single expert witness, the appropriate information has to be put before the Court. The wife posed the person named in the husband’s application in any event, and it seems to me that I would be wasting everybody’s time by making any order at this stage until such time as the question of just what asset is being pursued and its basis can be determined if the wife brings the foreshadowed further application in the New Year.
Order number (9) seeks that the conciliation conference scheduled for

7 December be vacated. I have no doubt in November that I intended to vacate that particular conciliation conference. As can be seen from the orders I then made I discharged the orders of Thornton J. What I was unaware of was that the conciliation conference had been made by Thornton J a lot earlier. Having regard to the enormous dispute promulgated here by the wife in relation to discovery, she could not possibly enter into a negotiation or a conciliation at which the Registrar could make any contribution in only a few days time. The conciliation conference is a pointless exercise at this stage. It seems possible, however, that a conciliation conference could be ordered closer to the trial date. Section 79 of the Act requires the Court to require parties to attend a conciliation conference before hearing a trial unless it becomes obvious to the Court that it is such a pointless exercise. Having regard to the complexities of this matter, as articulated by the wife and denied by the husband, it seems to me that the Registrar resources of one and a-half hours could not possibly make any significant contribution towards a resolution of this matter. On that basis, I propose to vacate the conciliation conference on 7 December, and the matter can be reviewed closer to the trial if necessary.

Other proposed orders associated with the proceedings included requiring the wife to give a full accounting of what she had done with the $500,000 and the provision of various documents. All of those matters can wait until 2 February, notwithstanding the husband still has to do his affidavit of trial evidence prior to that. Those matters should be provided as a matter of discovery, if they are relevant to the proceedings. If the wife refuses to provide the information so sought, no doubt it will be the subject of comment at trial.
The final matter, apart from costs, relates to the question of the wife providing an inventory of assets and liabilities of the Estate of Mr SS, including a copy of his will and copies of the correspondence associated with the legal representatives acting for the estate. I understand that this is the wife’s late father. I would presume also that the wife will be including any of the details in her financial statement for the purposes of the forthcoming trial, notwithstanding the demise of Mr SS is relatively recent, but it seems to me more sensible that if she provides those now, it is one less issue that may be controversial at trial. In those circumstances there should be an order made in terms of paragraph 12.
That particular application does not seek a time limit, but I would have thought seven days should be ample time, bearing in mind the wife was prepared to give the husband three days and seven days in respect of most of the items that she was seeking. I propose to make orders in those terms.
I will otherwise adjourn the unresolved paragraphs of the wife’s application of 25 November, and those issues that I have not otherwise dealt with in the husband’s application filed in response on 1 December to 10 am on 2 February 2017, and as I have indicated, I shall also make an order that the husband and the wife have leave to file such further applications as they are so advised, but by no later than 4 pm on 27 January 2017.

RECORDED : NOT TRANSCRIBED

I reserve the husband’s costs to the return date, and I will certify for the attendance of counsel.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 December 2016.

Associate:

Date: 7 December 2016