Narkis and Narkis (No 5)

[2017] FamCA 225

FAMILY COURT OF AUSTRALIA

NARKIS & NARKIS (NO 5) [2017] FamCA 225

FAMILY LAW – STAY PENDING APPEAL – where matter had proceeded on an undefended basis – where wife had opportunities to file material but had failed to do so – where grounds of appeal rely on procedural fairness – where child at risk – stay refused

Family Law Act 1975 (Cth)

Federal Commissioner of Taxation v Myer Emporium Limited (No 1) [1986] HCA 13; (1986) 160 CLR 220
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681
Clemmett & Clemmett (1981) FLC 91-013
Jackson & Balen [2009] FamCAFC 131

APPLICANT: Ms Narkis

RESPONDENT: Mr Narkis

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 210 of 2014

DATE DELIVERED: 3 April 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Melbourne video link to Adelaide

JUDGMENT OF: Cronin J

HEARING DATE: 3 April 2017

REPRESENTATION

THE APPLICANT: Ms J.E. Narkis in person

COUNSEL FOR THE RESPONDENT: Mr Dixon QC

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

1. The wife’s application for a stay is refused.

2. The application filed on 30 March 2017 is dismissed.

3. The wife bring the child E born on … 2002 (“the child”) to the Child Minding Centre of the Family Court of Australia, Melbourne Registry at 9.30 am on Tuesday 4 April 2017 and there be handed to the husband by the Court staff.

4. If the wife does not comply with paragraph 3 hereof then a Recovery Order do issue to the Australian Federal Police and all members of the police forces of the States of Australia and to give effect to such Recovery Order, the relevant police have access to the address which was provided to the Registrar Field last Friday 31 March 2017 and the husband have access to that address for the purposes only of attending with the police for the purposes of the execution of the Recovery Order.

5. That subject to the restriction on the husband in paragraph 4, paragraph 1 of the Order made by Justice MacMillan on Friday 31 March 2017 is discharged.

6. UNTIL FURTHER ORDER paragraph 3 in relation to the child being placed on the Airport Watch List of Justice Macmillan dated 31 March 2017 is discharged but the injunction against the wife removing the child from the Commonwealth of Australia remains in place.

7. The passport of the child be released forthwith to the husband.

8. The costs of the husband and the Independent Children’s Lawyer be reserved.

9. The wife has permission to access to all audio recordings of the Court on paying the appropriate fee.

10. The Court continue to send documents to the wife at O Street, Suburb P in the State of Victoria.

11. The reasons this day be transcribed.

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 5) 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 ADELAIDE

FILE NUMBER: MLC 210 of 2014

Ms Narkis

Applicant

And

Mr Narkis

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I propose to refuse the application for a stay.  In the Federal Commissioner of Taxation v Myer Emporium Limited (No 1) [1986] HCA 13; (1986) 160 CLR 220, Dawson J said in relation to rules associated with stay applications:

   It is well established by authority that the discretion which it confers to order a stay of proceedings is only to be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal.

2. The same principle was picked up by the High Court in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681 where Brennan J, admittedly talking about a special leave application, said that:

   In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. In each case when the Court is satisfied a stay is required to preserve the subject matter of the litigation, it is relevant to consider - first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the Court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

3. It is important to immediately note that the last authority concerns a special leave application, but there are principles in authorities along the same lines which should be applied in this Court.  In Clemmett & Clemmett (1981) FLC 91-013, the Full Court there said:

   If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period.

4. If the appeal appears to be based on a substantial ground and is not a mere delaying tactic, it should be evident from the documents but it is difficult to know what the grounds of appeal are here because the Notice of Appeal (which has not been served on either the solicitors for the father or, indeed, the Independent Children’s Lawyer, notwithstanding it was filed in the Court on 29 March 2017) contains six grounds. 

5. The first ground asserts mistake as to the facts.  One of the unenviable tasks of a trial judge in contemplating a stay of his or her own orders is to subjectively look at whether or not errors have been made.  The wife says that I have made mistakes as to the facts, but that is difficult to contemplate because of the absence of any evidence from her.  To the extent that she maintains she has filed affidavits in previous proceedings, the rules of the Court make it clear that affidavits can only be used for the purpose for which they were filed.  No affidavit material was filed by the wife in respect of the child.

6. The second ground asserts failure to take into account relevant considerations.  I have no idea what that means, and the Notice of Appeal does not particularise it.  No doubt that will become clearer when the wife is ordered to file proper grounds of appeal.

7. The third and the fourth grounds are a little hard to follow, but I shall read them exactly as they are written.  Number 3 reads:

   Improved efficiencies.  The mother’s proposed orders create efficiencies in litigation management and funding. 

   I have absolutely no idea of the relevance of that to the appeal, and, certainly, nothing that I can think of that has any relevance to the question of the stay. 

8. Ground four reads:

   Avoidance of unnecessary complications in litigation, including, but not limited to, delay and cost.  The orders of the Court will unnecessarily lead to additional complications, delay and cost. 

   If anybody has contributed to the delay and the cost, it must be the wife.

9. The fifth ground asserts denial of natural justice, and the sixth ground asserts lack of procedural fairness.  In reality, they are probably one and the same ground.  As I understand it, much of the complaint seems to be in relation to the refusal to grant an adjournment, and, whilst that might be the case on the last occasion, there can be no doubt that on previous occasions, the wife has had ample opportunity to file material and has failed to do so.  It is difficult there for me to see that any of the six grounds of appeal have any merit.

10. In Jackson & Balen [2009] FamCAFC 131, a decision of the Full Court of this Court, the Court set out a variety of principles which more or less summarise the matters that I have earlier mentioned. Sequentially, the first is that the onus to establish a proper basis for the stay is on the applicant for the stay. The only evidence that I have before me in relation to the stay application is attached to the wife’s affidavit filed 30 March 2017. None of the matters there are evidence. They are complaints and allegations; all of which are unhelpful to the stay application.

11. The second point is that it is not necessary for the applicant to demonstrate any special or exceptional circumstances.  That goes without saying but something must to be pointed to, to show that the decision was simply wrong.

12. The third point is that a person who has obtained a judgment is entitled to the benefit of that judgment, and the fourth point is that the person who has obtained a judgment is entitled to presume that the judgment is correct. 

13. The fifth point is that the mere filing of the appeal is insufficient to grant a stay. 

14. It is hard to know exactly what the grounds of appeal are, let alone the basis of the stay application, but if I return back to the Notice of Appeal, the orders that are sought by the wife relate more to this particular application than to the substantive proceedings.  The wife says that the orders of 27 March 2017 should be set aside.  She then goes on to say:

    That orders be made pursuant to the wife’s response to amended initiating application of 15 February 2017.

    I have no idea what that application means, and it certainly was not before the Court when I heard the case on an undefended basis. 

15. The next point is that the application must be bona fides.  It is very difficult to assess bona fides in this case, bearing in mind that I have not seen the wife cross-examined, nor has she put any evidence before the Court. 

16. The next point is that a stay may involve a court weighing the balance of convenience, including making orders for a stay that provide terms that are fair to all parties.  The unusual position here was that I was absent from the Melbourne registry last Friday, so when the application came in before the Court someone noticed that my orders were to be implemented on that day.  That being the case, Macmillan J as the case management judge, took the application and heard it in the afternoon.  Her Honour made a number of orders;  none of those stayed the orders that I made, but transferred the matter to me, sitting in Adelaide on the following Monday which is today. 

17. It is difficult to know what the balance of convenience is here because it was only as a last ditched effort that the wife has given any indication that she is prepared to negotiate some form of arrangement about E.  Both senior counsel for the husband and counsel for the Independent Children’s Lawyer submit that since Friday, no suggestion of any compromise has been put to them. 

18. The next point is weighing the risk that an appeal may be rendered nugatory if the stay is not granted.  The dilemma here is that there is an assertion by the wife that the husband could go to a non-Hague country, because I made no restrictions on his international movement, and that would then render the appeal nugatory.  There is no evidence that I could determine that the child is at risk of that occurring.  To the extent that there was any suggestion of a concern, senior counsel for the husband offered the husband would give an undertaking that he would not live in a non-Hague country.  In my view, the evidence does not support a conclusion that the undertaking is necessary.

19. Finally, the Court is obliged to make some preliminary assessment of the strength of the proposed appeal if it is to proceed.  The wife began the submissions today by saying that when lawyers are involved, they will address that particular point.  In other words, it is impossible for me to make an assessment even of some preliminary nature, as to the strength of her appeal. 

20. I have taken into account the specific grounds 5 and 6 where she indicates that she has been denied natural justice and procedural fairness.  The record will show the number of occasions that this matter was adjourned and, indeed, more importantly, documents were not filed.  On the basis of that, it is hard to see how a procedural fairness ground could apply in this case.

21. The wife says that there is merit in her Notice of Appeal because the registry accepted it.  I reject that.  The registry must accept a Notice of Appeal, providing it complies with the rules of Court.  In this case, the rules clearly were fulfilled, but that does not mean that the grounds of appeal have any substance.  Presumably, there will soon be a directions hearing where a judge will assess whether or not the appeal has some merit in the terms of the Notice of Appeal as pleaded.

22. The wife submits that if the child stays pending the appeal, there will not be a problem, that is, notwithstanding my findings, there will be contact.  The first point she makes is that the evidence that I relied upon from Dr J was just wrong.  She says that her doctor disagrees with Dr J, but I do not have any evidence of that.  She said that Dr J had been given a lot of material from the husband and his lawyers and she was simply asked “What do you say about all that?”  That is a very simplistic analysis of the role of the psychiatrist  who said that he had a number of years of experience as a forensic psychiatrist. 

23. The wife also said that I relied on the evidence of a microbiologist whom she said had told her that whoever pays the most, gets the report.  Apart from that being a scandalous allegation, it too is simplistic because, as with Dr J, that evidence has been in her possession for almost, if not longer than, two years.  The assertion is therefore very simplistic.

24. The next matter that is raised is probably the most important of all because it addresses the question of the best interest principles.  The Full Court in Clemmett (supra) said the best interest principles do apply in considering a stay application.  What I have been told by the wife is that the child has a scholarship at the school she is attending and has lots of friends there.  She says the existing arrangements are satisfactory and that the child is looking forward to attending a school program at EF Town, which is a country area north of Melbourne, but the details of that are scant.

25. What both the husband and Independent Children’s Lawyer say is that the EF Town program relates to a term rather than the school holiday period.  The wife says that the child has had a bad reaction to the orders.  I am not at all surprised about that, bearing in mind what I said in the reasons for judgment about the nature of the relationship between mother and child.  The child has not had the opportunity to be exposed to anything other than the influence of her mother.  It is said, and without evidence, that so bad was reaction of the child to the orders, the school counsellor reported a problem to the Department of Health and Human Services. 

26. According to the wife, that report occurred last Wednesday night at 6 pm.  She filed the affidavit on Thursday and made no mention of that.  It is well-known that under the Family Law Act 1975 (“the Act”), the Department of Health and Human Services has the capacity to remove the Court’s jurisdiction by implementing protective applications in the relevant state jurisdiction;  that has not occurred.  Just exactly what, if anything, the department is doing, I am unable to say. 

27. There is a further claim made by the wife that the “matter” was reported to the FG Hospital, who have prepared a safety plan for E.  In reply to both submissions of senior and junior counsel, the wife indicated that she had the safety plan for the child with her.  That was not in evidence and it seems to me that it is a fairly desperate situation to portray the orders as a problem for the child to warrant hospital intervention.  There is an even more concerning position, and that is that the wife asserts that I was not told of, or at least not aware of, an application for an intervention order specifically relating to the child in which Magistrate Goldsbrough was so concerned about the protection of the child that she appointed a lawyer for that child. 

28. That intervention order application was to be heard in the Magistrates’ Court today, but for reasons that are very confusing, the Magistrates’ Court contacted the solicitors for the husband and indicated that it was being adjourned to some date in May 2017.  Notwithstanding that, the wife says today that this morning she appeared before Magistrate Goldsbrough.  I am not sure on what basis or how her application, if it all, was before the Court, but she says that the magistrate has given her what I perceive to be legal advice and indicated what she should do. 

29. The wife also says that Magistrate Goldsbrough told her that someone – presumably not the magistrate herself – would contact me to let me know something about the proceedings.  I doubt very much whether a magistrate would have said those things, and if she did, I will be happy to go on record and say that it is improper for one judge to contact another, whatever the jurisdictional boundaries might be, and in some way impart information (if that is what it was) which is not common to all parties. 

30. The problem is that if this was evidence that might influence the stay application, none of it was before the Court.  Allegations are being made by the wife of the nature that I have described, and I have no idea whether they have any foundation. 

31. I raised a number of matters with both counsel.  The first was what, if any, concern there should be about trauma associated with the execution of the orders;  neither party expressed any concern to warrant a stay of the orders. 

32. The second I have already dealt with, which is the issue of some form of negotiated arrangement, including one about recovery, but I was unable to get any sense from the wife as to what solution or terms she could come up with if I decided the stay should not be granted.  I gave her an opportunity to indicate what the order should be, and the best she could do was to say she did not want the husband to know where she lived.  In other words, she had no solution to avoid the execution of the recovery order by the forces of the law.

33. The final matter was whether any of the other parties were aware of the matters that I have raised in relation to Magistrate Goldsbrough, and neither was aware of any concern. 

34. This is a balancing question, but it is also a very discretionary judgment.  At paragraph 106 of the reasons for judgment, I observed the following:

    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 E’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.

35. I add that I was so concerned about E’s best interests, notwithstanding all of the protestations of the wife about procedural fairness, that on the evidence I had, I maintain that there was no other order I could think of that served E’s best interests than that she live with the husband. 

36. At paragraph 107 of the reasons, I said the following:

    It is important that [the child] have the stability for 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. 

1. I interpolate here that as late as Friday, there was resistance to the husband and anyone else, including the Independent Children’s Lawyer, knowing the whereabouts of E, notwithstanding she is now known to be at a particular school.  That concerned Macmillan J because she made an order that the registrar be given the details by the wife and no one else other than as determined by a judge. 

2. Finally, I said in paragraph 107:

   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.

3. In relation to the intervention order issue, I have no better evidence than two particular points that I think I made in the judgment.  The first was that in relation to the recent attendance on psychologist Ms K, no indication of concern was raised by the child about issues with her father such that the state needed to intervene to protect her.  The second point is that having looked at the applications made by the wife to the Magistrates’ Court – and in particular, I refer here to the applications relating to herself – many of the complaints have a rhetorical nature about them and are not facts.  When I balance all of those matters up, the balance of convenience must favour the continuation and the execution of the order.  On that basis, the application for the stay is refused. 

Postscript

1. After delivery of these ex tempore reasons, I became aware of an email sent by an Associate to Magistrate Goldsbrough.  In fairness, having regard to what I have said above, I consider it should be reproduced in full as it does not reflect what the wife said:

   Your Honour,

   I write to you on behalf of Magistrate Goldsbrough regarding the above matter.

   [Ms Narkis] appeared before Magistrate Goldsbrough today seeking a variation to the intervention order regarding [the child].

   Magistrate Goldsbrough refused that application noting that all relevant questions are well before the Family Court today.

   The Magistrates Court was advised [Ms Narkis] appeared at the Family Court on 31/3/17 seeking a stay of the orders of Justice Cronin, returnable at 2pm today.

   For your information the next hearing of the Family Violence Protection orders are listed for directions hearing on 21/4/17.

   Further to this, Magistrate Goldsbrough has asked me to provide a copy of the below email which was sent to solicitors of each of the parties regarding the relevant intervention order proceedings.

   Regards

Mr GH
Family Violence Registrar

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 April 2017.

Associate: 

Date:  13 April 2017