NARKIS & NARKIS

[2014] FamCA 113

FAMILY COURT OF AUSTRALIA

NARKIS & NARKIS [2014] FamCA 113

FAMILY LAW – CHILDREN – Interim contact – Dispute as to the amount of time – Exploration as to the reasons why the wife resists husband’s proposal.

Family Law Act 1975 (Cth)

Goode & Goode [2006] FamCA 1346, (2006) FLC 93-286, (2007) 36 Fam LR 422

APPLICANT: Mr Narkis

RESPONDENT: Ms Narkis

FILE NUMBER: MLC 210 of 2014

DATE DELIVERED: 5 March 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Vohra

SOLICITOR FOR THE APPLICANT: Cantwell Family Lawyers

THE RESPONDENT: In Person

Orders

1. That the case assessment conference fixed for 17 March 2014 is vacated.

2. That all outstanding applications are adjourned to 10.00am on 16 April 2014 before the Honourable Justice Cronin for the determination of interim applications for relief.

3. That the wife file and serve any further material upon which she intends to rely together with an amended application by no later than 4.00pm on 28 March 2014.

4. That the husband file and serve an amended response to the wife’s amended application and any affidavit material upon which he intends to rely by 4.00pm on 14 April 2014.

5. That the father spend time with the child E born … June 2002 (but otherwise known as …) from 7.00pm this day until the commencement of school on Wednesday 12 March 2014 and for that purpose, E shall be collected from the 7-11 store at 7.00pm this day at Suburb C in B Street.

6. That the child be returned to the same store unless the parties otherwise agree at the conclusion of any period of time under these orders.

7. That the husband spend time with the child E for the Term 1 school holiday period from 9.00am on 12 April 2014 until 5.00pm on 21 April 2014.

8. That the reasons this day be transcribed and be made available to the parties and a copy thereof be sent to the Department of Human Services by the Registrar having regard to the Notice of Risk of Child Abuse that has been already filed.

9. 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 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

Ms Narkis

Respondent

REASONS FOR JUDGMENT

1. In the Judicial Duty List, this interim parenting dispute was determined on the affidavits and oral submissions. At its conclusion, I made orders for time to be spent between Mr Narkis, (“the husband”) and 11 year old E, (“the child”). Those orders were made over opposition from Ms Narkis, (“the wife”). The dispute was about the amount of time. I indicated that I would give written reasons and these are those reasons.

2. Two periods of time were involved. First, the husband sought immediate time with the child for the ensuing seven days. The wife’s view was that it only be six hours on a weekend day. Secondly, the husband sought a period of nine days in the forthcoming school term holidays. The wife sought that it be confined to four days. I accepted the husband’s position.

3. The wife’s case was that the child’s time during the school week should not be disturbed and the husband should be having “fun” time with the child. As for the holidays, the wife’s position was mixed but mostly that it was too long and the child would not stay.  Part of the wife’s concern was that the child is resistant to spending time with her father at all and she expressed doubts as to whether she could even get the child to attend. She said the husband had not been economically responsible in respect of the support of the family. One of the major difficulties in this case is that the husband lives in America and has done so since the parties separated a year ago. Leaving aside the difficulty of communication and spending time with the child, the wife accused the husband of having abandoned the family.

4. The substantive proceedings were actually begun by the wife and as no specific urgency was attributed to the matter, it was given a case assessment conference with a registrar on 17 March. I have vacated that because the husband will not be here but more importantly, the other interim financial issues will be listed before me for determination in April.  One such significant issue concerns interim property settlement or litigation funding.

5. The discrete hearing before me was precipitated by the husband on the basis of his perceived inability to be able to spend time with the child. He was represented by counsel. His application was filed on 26 February 2014 and supported by an affidavit of his evidence. The wife, as the respondent, was unrepresented as she has been since she began the case. She sought financial orders as well as parenting orders in a response to the husband’s application but that document was not produced until the hearing began. That meant that the husband had not had an opportunity to deal with all of the financial issues which the wife argued were pressing. I have adjourned those matters to a specific listing. The wife had also brought along an affidavit and I have taken the matters relating to parenting into account in these reasons. She said that she was unable to fund any legal representation because all of the lawyers wanted money in advance and she was unable to pay the registration expenses on the car she drove. The husband might well consider the position between now and the next hearing if indeed there is likely to be a property settlement are there are funds to go around.

6. It is obvious that the parents’ relationship is acrimonious. The husband accused the wife of thwarting his time with the child and involving her in the proceedings. There is evidence from the husband that would enable me to infer that is correct. There is little or no communication as evidenced by the fact that recently she was told that the child had poor mathematics standards at school. That had not been conveyed to the husband and hence, not only had the parents not been able to discuss how to address it but it also meant that the husband did not have a discussion point that he could have with the child.

7. The child was described by the wife as intelligent and strong-willed. It seems that the child is being put in a position where she determines what she will do with her father. That is not appropriate.

8. The child has an adult sister from the wife’s former marriage and it was sad to observe that she is a deponent to an affidavit about discussions with the child. The wife’s position is that the sister is protective of the child and wanted to assist her. She might do so by avoiding becoming embroiled in this.

9. The husband expressed concern about the wife’s care of the child. In his affidavit, he accused the wife of being a hoarder and attached to his affidavit, photographs that were over a year old showing what could only be described as junk everywhere. He said he did not want the child to live in that environment. He has filed a notice claiming the child is at risk in the wife’s care and the filing of that document has activated the Court’s obligation to send all of the material in the file to the Department of Human Services.

10. The wife denied that the problem still existed, saying that it had been cleared up but no doubt the Department will resolve the question. More concerning was the wife’s statement that the upper part of the house is affected by mould so she is moving with the child around through a house-sitting arrangement. None of that information appeared in her affidavit and the husband was certainly not aware of the details.

11. In respect of the holiday period proposed by the husband and notwithstanding she suggested four days was appropriate, the wife pointed to statements made by the child both orally and in written text form indicating her dissatisfaction with the husband. Much of that seems to be around financial matters indicating that the child is aware of and very much included in, discussions about the family’s problems.

12. The inference I have drawn from the evidence is that the child considers her father has not resolved the family’s financial woes and is in a position to do so whereas her mother is not. Secondly, much was made of the child’s time (or lack of it) with the husband. In January 2014, there was to have been a trip to Australia by the husband and definite plans were put in place. At the start of the month, the husband altered the arrival time for reasons which remain a little obscure and told the wife he could not arrive when he had promised the child. The wife did not respond and then took the child overseas herself. How that was afforded in this economic crisis, I am uncertain. Needless to say, the husband did not get to see the child. That would not have helped the relationship of all parties as the child had been told her father was coming. Again, the inference is obvious that the child had felt let down.

13. In 2013, the child and the wife went to America and spent time with the husband. He paid for that. His version was that the wife was insistent that she go but her view seems to be the opposite. His statement was that the only way he could get to see the child was by paying for it. The evidence remains untested and I cannot make a finding on it.

14. Another problem seems to have arisen when the husband’s daughter from his earlier marriage was getting married overseas. The parties disagreed about whether it was the wife’s requirement that she also attend. At the last moment before the event, because of what looks like an impasse, the child missed out on her sister’s wedding. That was most unfortunate bearing in mind their relationship.

15. It was the husband’s evidence that his relationship with the child had always been “excellent” and once with him, she was a loving child. He asserted she enjoyed her time with him. The wife begs to differ. The wife pointed to text messages between the husband and the child but they can also be read differently by each parent. I make no finding about either party’s version on this untested evidence but it might be of assistance if the rhetoric in the affidavit was not used and the parties stuck to the facts. (As an example, I point to the last line of the husband’s affidavit at paragraph 6)

16. In relation to the housing situation, the husband said that he had made offers about the mould and cleaning problem but the wife had refused to allow people into the house. This is all very concerning because the evidence remains untested but both parents are intelligent, educated people and they should know better.

17. The relationship between the parents can also be seen in the arena where the wife sought an intervention order. The parties seem to dispute how that arose and again, I am not in a position to make any finding of fact. Needless to say, agreement was reached which restricted the husband’s contact with the wife and yet the parties met in America. The intervention order proceedings included agreement in the form of a parenting plan. That seems not to have been successful either.

18. The conflictual nature of relationship of husband and wife is clouding the parenting issue. The financial issues need urgent attention as they are impacting upon the child.

19. The child is currently pursuing future school scholarships to enable her attendance at a private school. The wife said that the private school was an issue of the child’s choice. How the child has obtained all of that control is unclear but it seems to me to be psychologically unhealthy.

20. The child is also to undertake a religious ceremony this year and is giving significant attention to that as well. Along with dancing, the child appears a busy child. I am not in a position to find whether these activities are the cause of her mathematical standards drop or whether, as I suspect the wife would have me infer, it is something to do with the marriage breakdown and the child’s relationship with her father. The wife observed that the child’s English studies were good which tends towards the former activities rather than the latter problems.

21. What seems uncontroversial, despite the wife’s cynicism, the husband continues to pursue his relationship with the child.  It is important to observe that it is the child’s right to the relationship not the other way around. As I shall mention below, it is her right to have both parents not only in her life but also making significant decisions about her life.

22. The Court does not make parenting orders in a vacuum. It relies upon evidence and makes determinations guided by s 60B of the Family Law Act 1975 (Cth) (“the Act”) but having considered the best interests principles set out in Part VII of the Act.

23. Part VII of the Act begins with a statement of the objects of the Part and the principles underlying those objects. That statement of objects and principles is as follows:

    S 60B (1)       The objects of this Part are to ensure that the best interests of children are met by:

    (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

    (2)      The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

    (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

    (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d)parents should agree about the future parenting of their children; and

    (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

24. The Court only has the affidavit material which is untested but, in a short term interim arrangement, that is not unusual. As the Full Court in Goode & Goode [2006] FamCA 1346, (2006) FLC 93-286, (2007) 36 Fam LR 422 observed:

    ...the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.

25. Despite the truncated hearing and the paucity of evidence, the Court must still regard the best interests of the child as the paramount consideration in deciding what (if any) interim parenting orders should be made.  (Goode).

26. In Goode (supra) the Full Court indicated that the Court should:

    ·    Identify the competing proposals;

    ·    Identify the issues in dispute;

    ·    Identify any agreed or uncontested relevant facts;

    · Consider the matters in s 60CC that are relevant and if possible make findings.

27. I have identified the proposals. I refer again to the fact that there is no dispute as to contact taking place but rather the quantum. It is the reasoning behind wanting to restrict the husband’s time that needs consideration. Thus, the issues are defined. I need to turn then to the legal aspects. Section 60CA of the Act provides for the best interests principle to be the paramount consideration. That requires an examination of s 60CC.

28. Before doing so, I turn to s 61DA. It requires the Court to apply a presumption about parental responsibility but that should not be applied in this interim hearing because of the difficulty with making findings on such limited evidence. I propose therefore not to consider the parental responsibility issue.

29. The Court determines what is in a child’s best interests by considering the matters set out in s 60CC of the Act. The primary considerations are set out in s 60CC(2) and they are the benefit to the child of having a meaningful relationship with each parent and the need to protect the child from physical or psychological harm, from abuse, neglect or family violence. On the evidence, neither of those was of relevance here.

30. Whilst there is argument about the relationship, there seems little dispute that the wife wanted the child to have the benefit of a meaningful relationship with her father. There are no issues raised by the parties in respect of the second factor upon which I could make any findings.

31. There are additional considerations that must be considered. Dealing with them globally, I find that the views expressed by the child could not have any weight here because there is clear conflict in the evidence about whether the child enjoys and wants her time with the husband absent the attendance of the wife as against the pessimistic view held by the wife. The child’s views need to be sought from an independent source.

32. Questions of parental capacity, parental responsibility and family violence were not argued as affecting the determination. The wife wanted the Court to accept that the husband is economically irresponsible but at this stage, the untested evidence does not support such a conclusion. I have mentioned the family violence issues but the facts upon which that order was sought and made, are disputed and I have no reasons before me as to why the order was made. That is an issue for trial and does not seem to me to be of significance in this interim hearing bearing in mind that the wife took the child to America.

33. The nature of the child’s relationship with each of her parents is open to argument but I refer again to the fact that the wife wanted the child to have time with her father. That must mean that the wife accepts there is a relationship there.

34. Nothing turns on the question of the impact on the child by these orders. I said in discussion that if she cannot cope with the time with her father, it will be an unpleasant experience for everyone and that will be a portent for things to come.

35. The Court is entreated to contemplate the objects I began these legal aspects with;  they underpin the issues that have to be determined.

36. In my view, there is nothing in this case that suggests the child will not enjoy and benefit from the time with her father. I am not satisfied there is any argument about the husband’s capacity as a parent. I am not satisfied that anything the wife has said would enable me to find he is an inappropriate parent or that the child is at risk in his care.

37. On those bases, the child deserves to have the time with the husband and his proposal is the most logical one.

I certify that the preceding thirty seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 March 2014.

Associate: 

Date:  5 March 2014