NARKIS & NARKIS

[2016] FamCA 484

FAMILY COURT OF AUSTRALIA

NARKIS & NARKIS [2016] FamCA 484

FAMILY LAW – CONTRAVENTION – Where the husband is alleged to have contravened an order in relation to overseas travel with the child – Where the wife alleges that she was not informed of a change to the travel arrangements – Where the Court finds the wife has established a prima facie case – Where the Court finds the husband complied with the order and made reasonable attempts to inform the wife of the proposed change – Application dismissed.

FAMILY LAW – CONTRAVENTION – CHILDREN – Where the wife seeks to discharge an order providing for the child to have telephone and Skype communication with the husband – Where the wife has not adduced evidence as to why communication should be suspended – Where the wife has not provided alternative times for the child to communicate with the husband – Application dismissed.

FAMILY LAW – CONTRAVENTION – PRACTICE AND PROCEDURE – Where the wife seeks a “new psychiatric report” – Where a single expert has been appointed by the Court – Where the wife’s supporting affidavit does not address the matters mandated under rules 15.49 and 15.52 of the Family Law Rules 2004 (Cth) – Application dismissed.

FAMILY LAW – CONTRAVENTION – PRACTICE AND PROCEDURE – Where the husband seeks that the parties be restrained from filing any further interim applications, without leave of the Court – Where the application is supported by the Independent Children’s Lawyer – Orders made.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) rr 15.49, 15.52

APPLICANT: Ms Narkis

RESPONDENT: Mr Narkis

INDEPENDENT CHILDREN’S LAWYER: Ms Trapski

FILE NUMBER: MLC 210 of 2014

DATE DELIVERED: 16 June 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Melbourne

JUDGMENT OF: Justice Stevenson

HEARING DATE: 2 May 2016 and by way of written submissions

REPRESENTATION

FOR THE APPLICANT: Ms Narkis in person

COUNSEL FOR THE RESPONDENT: Ms Carter

SOLICITOR FOR THE RESPONDENT: Cantwell Family Lawyers

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Trapski Family Law

Orders

1. The wife’s Application – Contravention filed on 19 February 2016 is dismissed.

2. Leave is granted to all parties to apply for an audio disc of any hearing in these proceedings and upon such application each party will bear the costs of any such application which they make and the costs of supplying copies to the other parties.

3. The wife’s Application in a Case filed on 2 February 2016 is dismissed.

4. The wife’s Application in a Case filed on 19 February 2016 is dismissed.

5. The wife will advise the solicitors for the husband and the Independent Children’s Lawyer (“the ICL”) of times on two occasions per week when the child E (the child) born on … 2002 will be available to communicate with the husband by telephone/Skype as provided in Order 3(i) of 17 December 2014.

6. The wife and the child E will attend upon all appointments and interviews scheduled with and by the Family Consultant Ms K, as advised by the Family Consultant and /or the ICL.

7. The husband and the wife are restrained from filing any further applications without the leave of the Court, save and except for an application by the wife for leave to adduce evidence from an adversarial expert psychiatrist.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Narkis & Narkis 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 SYDNEY

FILE NUMBER: MLC 210 of 2014

Ms Narkis

Applicant

And

Mr Narkis

Respondent

And

Independent Children’s Lawyer

Trapski Family Law

REASONS FOR JUDGMENT

The proceedings

1. Mr Narkis and Ms Narkis are embroiled in litigation concerning financial issues and parenting matters in relation to their only child, E (the child) who was born in 2002.  The parenting and property proceedings were bifurcated by an order made on 8 October 2015.

2. Before me for hearing on 2 May 2016 were the following applications:

   a)The wife’s Application in a Case filed 2 February 2016 by which she sought the following orders:

   1.That the Mother obtain a new psychiatric report to be filed at the Family Court of Australia by the Mother on or before 31 March 2016.

   2.That leave be granted for that new report to be filed.

   3.That the new psychiatric report be served on the other parties and the Family Report writer Ms K and the updated family interviews and updated Family Report occur thereafter and the timelines in the Orders of October 2015 be updated accordingly.

   4.That the mother be at liberty to apply for the disc of each hearing in respect of all proceedings in this matter from Auscript, for which Auscript has advised it requires written formal Court of judicial consent.

   5.No order as to costs.

   6.An order to the above effect may be made in Chambers

   b)The wife’s Application in a Case filed on 19 February 2016 by which she sought to discharge an order made on 17 December 2014, providing that the child the child have telephone/Skype communication with the husband each Wednesday at 4.30 pm and Saturday at 10.00 am.

   c)The wife’s Application – Contravention filed on 19 February 2016 in which she alleged a breach by the husband of Order 2(c) made on 3 December 2015, which provided that he provide “a detailed itinerary” in relation to a trip to the United States by the child between 24 December 2015 and 11 January 2016.

   d)The husband’s Response to an Application in a Case filed on 21 April 2016 by which he sought the following orders:

   1.That pursuant to Section 102QB of the Family Law Act 1975 the Applicant be declared a vexatious litigant.

   2.That the real properties situate at and known as
   M Street, Suburb N (“Suburb N property”) in the State of Victoria be sold forthwith and the sale proceeds be applied as follows:

   (a)Payment of costs and commissions associated with the sale;

   (b)Discharge of the mortgage encumbering the said properties;

   (c)Balance to be applied to rectification works on
   O Street, Suburb P;

   (d)And the balance (if any) be applied t to the mortgage encumbering the Suburb P property.

   3.That the real property at O Street, Suburb P (“Suburb P property”) be sold upon the completion of the rectification works required on the said property and the sale proceeds applied as follows:

   (a)Payment of costs and commissions associated with the sale;

   (b)Discharge of mortgage encumbering said property;

   (c)Balance to be held in trust by the Husband’s solicitors in an interest bearing account.

   4.That the wife forthwith remove the caveats lodged by her in relation to the Suburb N property and the Suburb P property at her expense.

   5.That the Husband or his agents be at liberty to enter into the Suburb P property.

   6.That the Husband have sole control over the sale of the Suburb N and Suburb P properties and he shall keep the Wife’s solicitors informed of details as to the agent appointed, provide copies of contact of sale and details of settlement.

   7.That the Wife remove her items that she has stored at Q Street, Suburb R within 28 days and in the event that she fails to do so then the Husband is at liberty to dispose of these items.

   8.That in the event there is any further psychiatric evaluation required of the Wife then this shall be conducted by Dr J as the single expert as appointed by the Court in these proceedings at the Wife’s expense.

   9.That in the event the Court grants leave for an audio disc to be provided then both parties are to be at liberty to apply for an audio disc of any hearing in these proceedings and upon such application the other party be provided with the copy of same and each party bear the costs of their own application and supplying a copy of the disc to the other party.

   10.Such further and other orders as deemed appropriate by this Honourable Court.

3. At the interim hearing on 2 May 2016 counsel for the husband also sought to discharge the order for bifurcation of the parenting and property proceedings. Counsel for the husband indicated that his application for the wife to be declared a vexatious litigant pursuant to section 102QB could be adjourned to the final trial dates. Further, counsel for the husband indicated that the balance of the relief sought in his Response to an Application in a Case would probably be raised at the first day of the Less Adversarial Property Trial which was listed for 20 May 2016.

4. The husband sought an order to restrain both parties from filing any further applications without the leave of the Court.  This application was supported by the Independent Children’s Lawyer (“the ICL”), subject to an exception to enable the wife to make application for the appointment of an adversarial expert pursuant to Rule 15.49.  On the invitation of the ICL, I ordered that neither party file any further application pending delivery of my Reasons for Judgment.

5. Counsel for the husband submitted that the wife’s Application – Contravention should be dismissed pursuant to section 118, which provides as follows:

   118  Frivolous or vexatious proceedings

   The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:

   (a)  dismiss the proceedings; and

   (b)  make such order as to costs as the court considers just.

   This power, in my view, should be exercised with considerable care and caution.

Background

1. The husband and the wife, who are aged 59 and 50 respectively, married in 2002 and separated in October 2012 or early in 2013.  Each of the parties had been married previously and have adult children from those relationships.  The wife was locked in lengthy litigation with her first husband for a substantial period of the parties’ cohabitation.

2. The parties have one child, E (the child) who was born in 2002 and is presently 13 years of age.  The child lives with the wife in Melbourne.

3. The husband lives in City D, USA where he and a business partner are engaged in a business enterprise.  The wife has a degree and has worked as a professional in the past, although not in recent times.

4. On 3 December 2015 certain orders were made by consent, which included the following:

   2.        BY CONSENT the husband is permitted to:-

   (a)take [the child] out of Australia to the United States of America from 24 December 2015 to 11 January 2016 and to make arrangements to book and pay for a return flight for [the child] for such travel from Melbourne to the United States leaving 24 December 2015 returning 11 January 2016;

   (b)the husband to purchase and pay for such airline tickets and provide a copy to the wife and the Independent Children’s Lawyer no later than 16 December 2015.

   (c)the husband provide to the wife and the Independent Children’s Lawyer within seven (7) days a detailed itinerary identifying the destination, accommodation arrangements and telephone contact numbers for the purpose of telephone communication between the child and wife during the travel period.

   (d)the wife deliver [the child] to Melbourne International Airport to facilitate her travel to the United States on 24 December 2015 in time to meet the arrangements to catch the flight, details of which will be provided to the wife by email.

1. On 8 December 2015 the solicitors for the husband sent the following correspondence and enclosure to the wife:

   8 December 2015

   [Ms Narkis]
   OO Street

   Suburb PP  VIC  …

   BY EMAIL: …

   Dear [Ms Narkis],

   [NARKIS] – FAMILY LAW

   We refer to the Orders made 3 December 2015.

   We enclose a copy of the ticket purchased by our client for the child’s travel to [City D] on 24 December 2015.

   We advise that the child will be residing with our client in [City D] in the [U Street] property and for the purposes of emergency contact or communication pursuant to the Court Orders, she can be reached on our client’s mobile telephone.

   Yours faithfully,

   Cantwell Family Lawyers

   CC: ICL

[?]  Traveller [NARKIS], EMISS [?]
[?]  Flight – Qantas Airways (QF) - …			Thursday 24 December 2015
Qantas Airways Confirmation Number:			…
Depart:		11:20 AM	Tullamarine Arpt (MEL), Terminal 2 Melbourne, VI
Arrive:		6:35 AM	City D Intl Arpt (LAX), Terminal B
Flight …		Non-stop
Class of Service:		Economy (K)
Equipment:		Airbus A380-800     Flying Time:            14:15
Meal Service:		Lunch, Refreshments
In-Flight Services:		Movie, Audio programming, Duty free sales, Non-smoking, In-seat Video Player/Library
Special Services Requested			Status	Passengers
Primary Document Information ////0000000/F//NARKIS/E -1NARKIS/EMISS			Confirmed (HK)
Status	Confirmed (HK)
[?]  Flight – Qantas Airways (QF) – …			Saturday 09 January 2016
Qantas Airways Confirmation Number:			…
Depart:	10:15 PM Saturday 09 January 2016		City D Intl Arpt (LAX), Terminal B
Arrive:	9:05 AM Monday 11 January 2016		Tullamarine Arpt (MEL), Terminal 2 Melbourne, VI

Flight …	Non-stop
Class of Service:	Economy/Coach Discounted (H)
Equipment:	Airbus A380-800     Flying Time:            15:50
Meal Service:	Refreshments, Meal
In-Flight Services:	Movie, Audio programming, Duty free sales, Non-smoking, In-seat Video Player/Library
Special Services Requested		Status	Passengers
Primary Document Information ////0000000/F//NARKIS/E -1NARKIS/EMISS		Confirmed (HK)
Status	Confirmed (HK)

The wife’s Application – Contravention

1. The basis for the wife’s contravention application was that the husband and the child spent some time in City QQ between 24 December 2015 and 11 January 2015 and that she was not informed that they would leave City D.  Counsel for the husband indicated at the outset of the hearing of this application that there was no dispute that he and the child travelled to City QQ.  It was contended on behalf of the husband that the wife failed to establish a prima facie case because she “had no right to veto a change of plans.”  I decline to dismiss the wife’s contravention application pursuant to section 118 at this stage of the proceedings.

2. In cross-examination the wife said that she received a letter from the husband’s solicitors on 8 December 2015 but it contained no reference to the U Street property.  She said also that she did not recall that the letter provided details of the child’s flights.  The letter and its enclosure were in evidence (Exhibit “2”) and clearly referred to the U Street address and enclosed flight details.

3. During cross-examination it was put to the wife that the child told her during a telephone call that she and the husband had decided to go to City QQ after she arrived in City D.  The wife disagreed that the child told her about the proposed trip to City QQ.  The wife was asked to produce her telephone and refused to do so in response to a call by counsel for the husband.  In re-examination the wife said “I don’t recall speaking to the child about City QQ.  I did not speak to her in person about City QQ.”

4. At the end of the wife’s evidence there was nothing to establish the time when and circumstances in which the husband formed an intention to travel to City QQ with the child.  Accordingly, I held that the wife had established a prima facie case.  The husband then gave oral evidence via a video link, appearing by an iPad which was placed on the bar table.

5. The husband said that he had no intention to travel outside City D with the child when his solicitor wrote to the wife on 8 December 2015.  He said that he formed that intention “around Christmas” and booked accommodation in City QQ on 27 December 2015.  The husband said that his solicitor’s office was closed and that he was unwilling to contact the wife directly, so he asked the child to tell her of these plans.  The husband said that he saw a text message from the wife to the child which read “Have you arrived?”.

6. I accept the evidence of the husband that he had no plans to travel outside City D when his solicitor wrote to the wife on 8 December 2015.  Accordingly, I find that the husband complied with Order 2(c) of 3 December 2015 in that he provided all of the required details by 10 December 2015.  The orders of 3 December 2015 contained no requirement that the husband notify the wife of any subsequent change in his plans.

7. I accept the husband’s evidence that he asked the child to inform the wife of the proposed trip to City QQ and that he saw a text message from the wife which read “Have you arrived?”.  I thus accept the husband made a reasonable attempt to inform the wife of the proposed trip.  Notably, the wife refused to produce her telephone in response to a call from the husband’s counsel.

8. For these reasons I will dismiss the wife’s Application – Contravention filed on 19 February 2016.

The wife’s Application in a Case filed on 2 February 2016

1. On 16 April 2014 an order was made that the parties attend upon Dr J for a psychiatric evaluation. The wife now seeks an order for “a new psychiatric report.” As Dr J was appointed as a single expert, any application by the wife to adduce evidence from another psychiatrist must be brought pursuant to Chapter 15 of the Family Law Rules 2004 (Cth) (“the Rules”). Rule 15.49 provides as follows:

   RULE 15.49  APPOINTING ANOTEHR EXPERT WITNESS

   15.45(1)  If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.

   15.49(2)  The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:

   (a)there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue;  or

   (b)another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or

   (c)there is another special reason for adducing evidence from another expert witness.

2. The procedure by which such an application must be made is set out in Rule 15.52 which provides as follows:

   RULE 15.52  APPLICATION FOR PERMISSION FOR EXPERT WITNESS

   15.52(1)  A party may seek permission to tender a report or adduce evidence from an expert witness by filing an Application in a Case.

   15.52(2)  The affidavit filed with the application must state:

   (a)whether the party has attempted to agree on the appointment of a single expert witness with the other party and, if not, why not;

   (b)the name of the expert witness;

   (c)the issue about which the expert witness’s evidence is to be given;

   (d)the reason the expert evidence is necessary in relation to that issue;

   (e)the field in which the expert witness is expert;

   (f)the expert witness’s training, study or experience that qualifies the expert witness as having specialised knowledge on the issue; and

   (g)whether there is any previous connection between the expert witness and the party.

   15.52(3)  When considering whether to permit a party to tender a report or adduce evidence from an expert witness, the court may take into account:

   (a)the purpose of this Part (see rule 15.42);

   (b)the impact of the appointment of an expert witness on the costs of the case;

   (c)the likelihood of the appointment expediting or delaying the case;

   (d)the complexity of the issues in the case;

   (e)whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only; and

   (f)whether the expert witness has specialised knowledge, based on the person’s training, study or experience:

   (i)relevant to the issue on which evidence is to be given; and

   (ii)appropriate to the value, complexity and importance of the case.

   15.52(4)  If the court grants a party permission to tender a report or adduce evidence from an expert witness, the permission is limited to the expert witness named, and the field of expertise stated, in the order.

1. The wife’s affidavit of 6 January 2016 does not address the matters mandated by Rules 15.49 and 15.52.  She has not identified her proposed expert; the issue about which his or her evidence is to be given; his or her field of expertise, training, study or experience which qualifies the expert with particular knowledge; any substantial body of contrary opinion nor any knowledge of matters which were unknown to Dr J.

2. The wife appeared to rely substantially on her perception of “a lack of procedural fairness” allegedly afforded to her by Dr J.  In an affidavit sworn on 6 January 2016 the wife stated:

   3.  ... significant issue arose in that [Dr J] did not accept any evidence from her at that appointment in response to the vast material from the father or his lawyers, of which she was not notified in advance that this material had been given to him as ought to have occurred to ensure fairness.  Further that material had only just been recently filed by the father’s lawyers, not long before the mother’s appointment.

3. I find it difficult to reconcile this complaint with the following comments by Dr J in his report:  “I was provided with copious documentation from the Wife prepared by herself, as well as material from the Husband” and “She ... had provided me with a highly organised, extensive portfolio of documents related to the current proceedings.”

4. For these reasons I decline to make orders which would permit the wife to adduce evidence from an adversarial expert. Of course, nothing prevents her from obtaining a report from another expert and making an application for permission to rely upon that evidence in the manner prescribed by the Rules.

5. I see no reason for delay in the preparation of an updated report by Family Consultant Ms K, as sought by the wife.  She and the child failed to attend appointment scheduled for February 2016, as a result of a unilateral decision on her part.  The reason proffered by the wife for the failure of herself and the child to attend upon Ms K was expressed as follows in an email dated 29 January 2016:  “[E] and I will not be attending at your rooms on 2 February 2016.  Relevant material has been presented to the Family Court for filing on my behalf.  It pertains to the proposed updated Family Report.  I shall advise further as appropriate and trust that this is acceptable.”  The husband and the ICL sought orders to compel the attendance of the wife and the child upon Ms K in August 2016.  That course seems to be designed to prevent further delay in the finalisation of the parenting applications and appropriate in the circumstances.

6. Counsel for the husband suggested that leave be granted to all parties to apply for an audio disc of any hearing in the proceedings.  The applicant for such leave would make available a copy of such a disc to the other parties, at his or her expense.  That proposal seems to me to be a sensible and practical way to deal with audio discs.

The wife’s Application in a Case filed on 19 February 2016

1. There was scant evidence offered by the wife in support of this application.  Her affidavit went no further than to state that the child is enrolled at a new school and that she has unspecified activities at the times prescribed in Order 3(i) of 17 December 2014.

2. The wife was found to have contravened this order, without reasonable excuse, between December 2014 and February 2015.  She was placed on a bond to be of good behaviour for twelve months and ordered to pay costs.

3. Annexure “MN-12” to the husband’s affidavit of 19 April 2016 consisted of correspondence from his solicitor to the wife in which she was requested to provide alternative times for the telephone and Skype communication.  I accept the evidence of the husband and the submission of his counsel that the wife has never offered such alternative times.

4. The ICL opposed a suspension of the child’s telephone/Skype communication with the husband.  She emphasised that the child is unable to spend regular face-to-face time with the husband due to distance, thus this form of communication assumed additional significance.  The ICL suggested that the wife could provide alternative times to the husband’s solicitors within forty-eight hours, which seemed a constructive and practical proposal.  I agree with the submission of the ICL that the wife adduced no evidence that the child’s best interests will be served by a suspension of this form of interaction with the husband.  I will dismiss this application.

Restraint on the parties filing fresh applications

1. In my view, the parenting proceedings need to be determined without further delay.  Additional interim applications will only cause delay in the listing of a final hearing.  I agree with the submission of the ICL that the wife gave cause for concern in this regard on 2 May 2016, when she foreshadowed applications for a further contravention in relation to the City D trip and concerning orthodontic treatment for the child.  I made an order that the wife communicate with the ICL concerning orthodontic treatment within twenty-four hours.  The written submissions of the ICL suggested that she failed to do so.

Bifurcation of the proceedings

1. The property proceedings have now been allocated to a Judicial Docket and were listed for a Less Adversarial Trial First Day on 20 May 2016.  The wife opposed the consolidation of the property and parenting proceedings but the husband and the ICL supported that course.

2. I am concerned about the potential impact of consolidation of the proceedings on the involvement of the ICL in the trial and the potential cost to the public purse.  It could well be the case that the ICL would have no active role to play in a consolidated trial for days on end.  Further, it seems to me that there is greater potential for bringing about a timely listing for trial of the parenting proceedings if that aspect of the case remains separate from financial issues.  Accordingly, I will not discharge the order for bifurcation of the proceedings.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 16 June 2016.

Associate: 

Date:  16 June 2016