NARKIS & NARKIS

[2015] FamCA 222

FAMILY COURT OF AUSTRALIA

NARKIS & NARKIS [2015] FamCA 222

FAMILY LAW – COSTS – application for costs by the Independent Children’s Lawyer where the wife’s objection to a subpoena was wholly unsuccessful –  application granted

Family Law Act 1975 (Cth)

APPLICANT: Mr Narkis

RESPONDENT: Mr Narkis

INDEPENDENT CHILDREN’S LAWYER: Trapski Family Law

FILE NUMBER: MLC 210 of 2014

DATE DELIVERED: 12 March 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 12 March 2015

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms Stoikovska

SOLICITOR FOR THE RESPONDENT: Cantwell Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYERS:	Ms Buchanan
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYERS:	Trapski Family Law

Orders

IT IS ORDERED

BY CONSENT

1. That to facilitate compliance with paragraph 7 of the orders made on 17 December 2014:-

   (a) The wife provide to the solicitors for the husband in writing the names of three business valuers and three real estate valuers within 7 days to value all of the interests identified in paragraphs 6 and 7 of the orders of 17 December 2014 and any other interests held by either party;

   (b) Thereafter the husband select one business valuer and one real estate valuer and cause his solicitors to write the joint letter of instruction and send the letters to the wife within 10 days; and

   (c) Upon receipt the wife shall sign and return the joint letter of instruction to the solicitors for the husband within three business days of receipt.

BY CONSENT

1. That the Conciliation Conference date listed on 1 April 2015 at 9.15am be vacated and the matter be listed for Conciliation Conference on 3 June 2015 at 11.00am, and the husband is required to be available by telephone for that conference.

BY CONSENT

1. That within 7 days:-

   (a) The wife sign the client services agreement and return the same to I Health Services and contemporaneously provide a signed copy of the said agreement to the solicitors for the husband;

   (b) The husband sign all such documents as may be required to facilitate payment to I Health Services (if not already provided) as required pursuant to Order 4 of the orders dated 23 June 2104.

IT IS ORDERED

1. That within 7 days the mother provide to the ICL the completed questionnaire and authority provided by the ICL to the mother on 5 December 2014 and 11 February 2015.

2. That the husband’s Contravention Application filed 4 March 2015 and his Amended Response to Application in a Case filed 10 March 2015 be adjourned to the Judicial Duty List on 5 May 2015 at 10.00am and in the event that the husband withdraws that application prior to the adjourned date, the wife be notified of the same in writing within three days of such withdrawal.

BY CONSENT

1. That the husband and the wife forthwith do all such acts and things and sign all such necessary documents to sign a passport application for the child E (otherwise known as E) (“the child”) and insert the address of the Independent Children’s Lawyer for delivery of the passport.

2. That within 7 days the wife send the completed passport application to the husband’s solicitor for execution by him.

3. That within 7 days of his receipt of the passport application, the husband do all such things and sign all such necessary documents to sign a passport application for the child and send to the Passport Office for lodgement.

4. That the passport for the child be held by the Independent Children’s Lawyer pending further order or written agreement between the parties.

5. That upon written consent of the husband and the wife for E to travel overseas the parent who will be with E overseas is to provide the other parent with the following information not less than 14 days prior to anticipated departure date:-

   (a) Detailed itinerary; and

   (b) The address/es at which the child shall reside and the landline number of their accommodation and mobile telephone numbers on which the other party can communicate with the child at all times.

6. That in the event the passport is released to one of the parties for the purposes of travelling overseas pursuant to the preceding order, it is to be immediately returned to the Independent Children’s Lawyer within 48 hours of the child’s return to the Commonwealth of Australia either by hand or by registered post.

7. That the wife’s Application in a Case filed 23 October 2014 be otherwise dismissed.

8. 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.

IT IS ORDERED

1. That the wife pay the costs of the Independent Children’s Lawyer arising from the hearing before Registrar Sikiotis on 6 March 2015 fixed in the sum of $534.

2. That the wife’s payment of costs ordered pursuant to paragraph 14 hereof be stayed to the conclusion of the parties’ competing property applications.

AND THE COURT NOTES

That the wife has indicated that she has made an appointment with I Health Services and the solicitors for the husband have confirmed and acknowledged that an appointment has been made for 9.30am on 28 April 2015 subject to the wife signing the client services agreement.

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 MELBOURNE

FILE NUMBER: MLC 210 of 2014

Mr Narkis

Applicant

And

Mr Narkis

Respondent

And

Independent Children’s Lawyers

REASONS FOR JUDGMENT

1. These Reasons for Judgment were delivered orally.

2. I have before me today an application for costs made on behalf of the Independent Children's Lawyer.  That application arises as a result of a hearing before Registrar Sikiotis on 6 March 2015.  That was the return date for a subpoena to produce documents directed to Victoria Police. 

3. The wife in these proceedings, Ms Narkis, filed a notice of objection with respect to that subpoena.  That notice of objection was filed on 20 February 2015.  At paragraph one of the notice of objection, Ms Narkis stated: 

   I take objection to the release of materials from the Victoria Police, subpoenaed by the ICL on a number of bases. 

4. She then set out details as to her concerns with respect to the conduct of investigations by Victoria Police and the potential for those investigations to be compromised by the release of the documents sought.  Registrar Sikiotis determined the issue with respect to the subpoena and made an order on 6 March 2015 in the following terms:- 

   (5)The Notice of Objection filed by the applicant on the 20^th February 2015 against the subpoena issued by the Independent Children's Lawyer on the 19^th December 2014 and as amended on the 24^th December 2014 to Victoria Police is dismissed. 

   (6)That the documents produced under the said subpoena to Victoria Police to the Court on the 16^th January 2015 are released only to the Applicant, the Respondent’s solicitor and the Independent Children's Lawyer for viewing. 

5. The Independent Children's Lawyer sought orders that day with respect to her costs incurred in appearing at that hearing before Registrar Sikiotis.  Registrar Sikiotis reserved the question of the Independent Children's Lawyer’s costs with respect to the objection filed by the applicant to the hearing before me today.  The essence of the application made on behalf of the Independent Children's Lawyer is that she was wholly successful in her application for the release of the documents.  She is required, pursuant to Victoria Legal Aid guidelines, to seek her costs in circumstances where she is funded by Victoria Legal Aid.

6. On 10 March 2015, the Independent Children's Lawyer informed the wife of the position of the ICL with respect to costs.  In that letter, she stated:- 

   We put you on notice that on 12 March, the independent children's lawyer will be making an application for costs in the amount of $534 with respect to your objection to the release of the Victorian Police subpoena.  We note that as a result of your objection, the matter had to be listed separately for the objection to be heard, incurring costs for Victoria Legal Aid.  As you were wholly unsuccessful in your application, that extra costs we incurred and as the registrar also put to you on notice at the previous subpoena hearing with regards to costs, we are obliged to seek the same. 

7. The wife opposes the order sought for costs.  Whilst she acknowledges that she filed an objection to the subpoena, she submits that she was, prior to that subpoena hearing, prepared to consent to an order on the basis that the documents be released for inspection only.  There is no evidence before me that would indicate that the wife communicated that position either to the Court or to the Independent Children's Lawyer prior to the hearing on 6 March 2015. 

8. The question of costs is governed by section 117 of the Family Law Act1975 (Cth). It provides that, save for specified circumstances, each party shall bear his or her own costs. Section 117(2A) sets out the considerations that must be taken into account in the event that the Court is required to make a determination as to such costs application as is before me today.

9. In terms of those matters, the wife has informed the Court that her financial circumstances are such that she is not in a position to meet costs.  She has indicated from the bar table that she is likely to soon be in receipt of Centrelink benefits.  Further, she submits that there are but a few hundred dollars currently held by her in her savings account.  The difficulty with those submissions is that in June 2014, the wife received a partial property settlement of some $500,000.  In December 2014, the wife sought to agitate before me an application that she travel to the United States of America with the parties’ child for the purposes of a vacation.  Today before me, she has raised the issue of further travel with the child during the impending April school holidays.  In those circumstances, it would seem that the wife has the financial wherewithal to meet an order in the terms sought by the Independent Children's Lawyer.  Certainly, she seems to have the ability to make funds available for overseas travel.

10. I have already had regard to the fact that the Independent Children's Lawyer is funded by Victoria Legal Aid.  The Independent Children's Lawyer was successful in seeking the release of the documents.  Costs were incurred by the Independent Children’s Lawyer in having to appear at that subpoena hearing and respond to the wife’s objections.  The wife was wholly unsuccessful in her objection to the release of those documents.  In the circumstances, I am satisfied that it is appropriate that a costs order be made. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 12 March 2015.

Associate: 

Date:  12 March 2015