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

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

The wife’s application for a stay is refused.
The application filed on 30 March 2017 is dismissed.
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.
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.
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.
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.
The passport of the child be released forthwith to the husband.
The costs of the husband and the Independent Children’s Lawyer be reserved.
The wife has permission to access to all audio recordings of the Court on paying the appropriate fee.
The Court continue to send documents to the wife at O Street, Suburb P in the State of Victoria.
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…

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 225
Decision Date: 3 April 2017

CaseChat Overview and Summary

In the matter of *Narkis and Narkis (No 5)*, Cronin J of the Family Court of Australia considered applications by the wife concerning the welfare of the child, E. The dispute involved the wife's application for a stay of previous orders and the husband's application filed on 30 March 2017.

The court was required to determine whether to grant the wife's application for a stay, whether to dismiss the husband's application, and to make orders regarding the immediate care and location of the child, E. Further issues included the discharge of certain previous orders, the release of the child's passport, and the allocation of costs.

Cronin J refused the wife's application for a stay and dismissed the husband's application filed on 30 March 2017. The court ordered that the wife was to bring the child to the Child Minding Centre of the Family Court of Australia, Melbourne Registry, at 9:30 am on Tuesday, 4 April 2017, for the child to be handed to the husband by court staff. In the event of non-compliance, a Recovery Order was to issue to the Australian Federal Police and all state police forces, granting them access to a specified address and allowing the husband to attend with the police for the execution of the order. Subject to the husband's access restrictions, a previous order by Justice McMillan on 31 March 2017 was discharged. An injunction against the wife removing the child from the Commonwealth of Australia remained in place, though a previous order placing the child on the Airport Watch List was discharged until further order. The child's passport was to be released forthwith to the husband. The costs of the husband and the Independent Children’s Lawyer were reserved.

Orders

Orders of the court

The wife’s application for a stay is refused.

The application filed on 30 March 2017 is dismissed.

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.

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.

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.

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.

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

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

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.

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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