Narkis and Narkis (No 3)

[2014] FamCA 1222

FAMILY COURT OF AUSTRALIA

NARKIS & NARKIS (NO 3) [2014] FamCA 1222

FAMILY LAW – CHILDREN – Best interests – with whom a child communicates – orders restraining the mother by injunction from interfering with or disrupting the father’s time and communication with the child

FAMILY LAW – PROPERTY – Orders for valuation

Family Law Act 1975 (Cth)

APPLICANT: Ms Narkis

RESPONDENT: Mr Narkis

INDEPENDENT CHILDREN’S LAWYER: Trapski Family Law

FILE NUMBER: MLC 210 of 2014

DATE DELIVERED: 17 December 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 17 December 2014

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr G Holmes

SOLICITOR FOR THE RESPONDENT: Cantwell Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Buchanan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Trapski Family Law

Orders

BY CONSENT IT IS ORDERED:-

1. That the wife be at liberty to enrol the child E (known as the child) born … 2002 at a school of the wife’s choice and the parties do all things to sign the enrolment forms once the wife has made her choice, provided:-

   (a)The wife provides written notification of the chosen school as soon as is practicable to the husband; and

   (b)Until further order the wife be solely responsible for all fees and expenses associated with such enrolment and education;

   AND THE COURT NOTES that the question of the husband’s contribution to educational expenses for the child, if any, be reserved to the Trial Judge.

2. That the parties do all things to attend upon Ms K, Psychologist with the child for the purposes of the preparation of a Family Report as to the child’s best interests and the cost of such report be shared equally between the parties.

3(i).That until further order the husband have telephone/Skype communication with the child each Wednesday at 4.30pm and Saturday at 10.00am (AEST) with the wife to do all things to facilitate the telephone/Skype communication.

3(ii).That during the long summer holiday period in January 2015 when the child is in the husband’s care, the wife communicate with the child by telephone/Skype each Wednesday at 4.30pm and each Saturday at 10.00am (AEST) and the husband do all things to facilitate the telephone/Skype communication.

IT IS ORDERED:-

1. That the parties attend a Conciliation Conference with Registrar Sikiotis at 9.15am on 1 April 2015.

2. That all extant applications be adjourned for mention before the Honourable Justice Johns at 9.30am on 6 March 2015.

3. That the parties forthwith do all things necessary to engage L Valuers (“Valuer”) to conduct valuations of the following properties:-

   (a)M Street, Suburb N; and

   (b)O Street, Suburb P

   and the cost of such valuations be shared equally between the parties.

4. That in addition to paragraph 6 of these orders the parties do all things necessary to engage single expert valuers to value the following:-

   (a)      Q Street, Suburb R;

   (b)      S Street, Suburb T;

   (c)      U Street, City D, USA; 

   (d)      Real property owned by the superannuation fund;

   (e)      X Pty Ltd;

   (f)       Y Pty Ltd; 

   (g)      Z Pty Ltd; and

   (h)      AA Pty Ltd

5. That the husband provide all relevant financial documents to enable the entities identified in order 7 hereof to be valued.

6. That the costs of the single expert valuations referred to in order 7 hereof be shared equally between the parties.

BY CONSENT IT IS ORDERED:-

1. That the wife do all things to allow:-

   (a)The valuer referred to in order 6 hereof entry to the property at O Street, Suburb P for the valuation to be completed; and

   (b)A representative from Biological Health Services to enter O Street, Suburb P to provide an assessment report and quote as to the mould in the property so as to comply with Orders 3 and 4 of 23 June 214.

2. That the changeover for the husband’s time with the child pursuant to the orders of 23 June 2014 be outside the Suburb BB Police Station at the commencement of his time at 5.00pm on 4 January 2015 and at the conclusion of his time at 5.00pm on 25 January 2015.

IT IS ORDERED:-

1. That until further order the wife be restrained by injunction from disrupting or interfering with the husband’s time with the child when she is in his care or when the child is communicating with the husband.

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

AND THE COURT NOTES:-

AThat a confirmed booking has been made with Ms K for 20 January 2015.

BThat the husband is to see Dr J on 8 January 2015.  The wife is to see Dr J on 22 January 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Narkis & Narkis (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 210 of 2014

Mr Narkis

Applicant

And

MrNarkis

Respondent

And

Independent Children’s Lawyer

REASONS

1. These reasons for judgment were delivered orally.

2. These are the adjourned proceedings that arise out of the parties’ competing interim applications.  The wife’s interim application was an Application in a Case filed in October 2014.  That was met by a Response to an Application in a Case filed by the husband on 26 November 2014. 

3. Those matters came before me in a Judicial Duty List on 2 June 2014. Because of concerns that I had that day with respect to the care and welfare of the parties’ child, the child, who is aged 11 years, I made orders for the appointment of an Independent Children’s Lawyer, and also an order pursuant to s69ZW of the Family Law Act 1975 (Cth) that the Department of Human Services provide a further report as to the welfare concerns that are raised by the husband in his affidavit material, particularly with respect to the allegation that the wife suffers from a hoarding disorder and that that disorder is adversely impacting on the child’s care, health, and welfare.

4. It is those applications that are listed before me today.  At the commencement of the hearing, I released to the parties the interim report prepared by the Department of Human Services dated 15 December 2014.  That report indicates the current situation for the child in light of contact that the Department has made with the child’s primary school.  It is evident from that report that the Department has concerns as to the child’s welfare.  The report, in its protective assessment, particularly at page 5, indicates that the Department is concerned about the likelihood of emotional harm for the child as a result of exposure to parental mental health and environmental neglect. 

5. As a consequence of those concerns, the Department has indicated that it proposes to undertake a comprehensive assessment of the wife, the husband and of their respective parenting capacities and to provide a further report as to the impact of those matters upon the child’s emotional wellbeing, physical health, and safety.  The orders that I am asked to make today by consent relate to the child’s enrolment in secondary school, and, further, make provision for the parties to attend upon Ms K, psychologist.  She is to prepare a family report in respect of this family. 

6. Further, I note that, pursuant to orders previously made by the Court, it is intended that the parties will attend upon Dr J.  The husband has an appointment to see Dr J on 8 January 2015.  The wife has an appointment to see Dr J on 22 January 2015. 

7. In addition, I am asked to make orders by consent with respect to financial matters.  I will order a conciliation conference on 1 April 2015 at 9.15 am.  In anticipation of that conciliation conference, I will make orders by consent in the terms of the minute that has been provided with respect to preparation of property valuations and also valuations with respect to the entities controlled by the husband or in which he has an interest. 

8. Further, I will make orders by consent with respect to permitting the appointed valuer to inspect the property occupied by the wife.  I will also make an order by consent with respect to a representative of Biological Health Services attending that property to complete its assessment report, pursuant to orders previously made. 

   RECORDED  :  NOT TRANSCRIBED

9. The only issue that stands between these parties today is the question of whether or not an injunction should be made in the following terms: 

   That the wife be restrained by injunction from disrupting or interfering with the husband’s time with the child when she is in his care or when the child is communicating with the husband. 

10. I am satisfied that it is appropriate that such an order be made. In determining what is in a child’s best interests, I am to have regard to the matters set out in s 60CC of the Family Law Act1975 (Cth). The Act provides that a child’s best interest is my paramount consideration.

11. There are serious issues raised by each of the parties as to the conduct of the other and as to the impact of that conduct upon the child.  I am not in a position today to make a determination in relation to those contentious facts.  It is likely that the reports to be provided by Ms K and Dr J may ultimately assist in a determination of those issues. 

12. It is evident from the husband’s affidavit material to which I have been directed that he has serious issues and has raised serious concerns about the wife interrupting his time with the child. 

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. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 17 December 2014.

Associate: 

Date:  17 December 2014