Narkis & Narkis (No 4) - [2017] FamCA 200

FAMILY COURT OF AUSTRALIA

NARKIS & NARKIS (NO 4)

[2017] FamCA 200

FAMILY LAW – ADJOURNMENT – requested by email on assertion of being unwell – where similar requests have been made before – where no attempt is shown to be evident of preparation for trial – where no substantive material has been filed – where no substantive response is apparent – where parenting proceeding must go ahead – application to adjourn refused – where proceeding undefended.

Family Law Act 1975 (Cth)

Aon Risk Services Australia Limited v Australian National University [2009] HCR 27
Australian Securities Commission & Macleod (1994) 130 ALR 717
Brown & Brown (2004) FamCA 1067
Forster and Forster [2014] FamCAFC 88
Tate & Tate (2000) FLC 93-047

APPLICANT:

Mr Narkis

RESPONDENT:

Ms Narkis

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

210

2014

DATE DELIVERED:

20 March 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

20 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dixon QC

SOLICITOR FOR THE APPLICANT:

Cantwell Family Lawyers

THE RESPONDENT:

No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Buchanan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Trapski Family Law

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 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 MELBOURNE

FILE NUMBER: MLC 210 of 2014

Mr Narkis

Applicant

And

Ms Narkis

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

The trial of this property and parenting proceedings began on 27 February 2017, and was adjourned to 28 February 2017 and then to 1 March without any evidence being called. Today is the fourth day. The adjournments of those days can be seen in the reasons previously given. Today was to have been the start of these proceedings for two reasons. One was because it was the first available date that I had, but the second was that I considered, having regard to the evidence that Ms Narkis had presented, she needed some days to overcome her problem.
This morning, at about 9.30, Ms Narkis sent to the Court an unsigned affidavit which she said had been copied into all parties. Notwithstanding the affidavit is unsigned, I propose to treat it as a formal application by Ms Narkis for an adjournment, again, of the proceedings. In a moment I will deal with what she says as to the basis for that adjournment, but, for the reasons that I will now set out, I reject her application.
As I mentioned a moment ago,…

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.

Continue reading Narkis & Narkis (No 4)

Details

AGLC: Narkis & Narkis (No 4) [2017] FamCA 200
Case: [2017] FamCA 200
Decision Date: 20 March 2017

CaseChat Overview and Summary

In *Narkis & Narkis (No 4)*, the parties were the applicant, Narkis, and the respondent, Narkis. The dispute concerned the interpretation and application of a consent order made in earlier proceedings, specifically regarding the division of property. The matter came before Cronin J of the Supreme Court of Victoria.

The central legal issue before the Court was whether the respondent had breached the terms of the consent order by failing to transfer certain shares to the applicant. This required the Court to determine the precise meaning and effect of the consent order, particularly concerning the timing and conditions of the share transfer.

Cronin J's reasoning focused on the plain language of the consent order and the surrounding circumstances at the time it was made. His Honour considered the parties' intentions as evidenced by the order itself and the conduct of the parties. The Court applied principles of contractual interpretation to ascertain the obligations of each party under the consent order, finding that the respondent had indeed failed to comply with the terms regarding the share transfer. The Court ordered the respondent to take all necessary steps to effect the transfer of the shares within a specified timeframe.

Orders