Narkis & Narkis (No 4)
[2017] FamCA 200
•20 March 2017
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 | of | 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, the proceedings were really adjourned on the last occasion as a result of a problem that Ms Narkis said she had with a tooth. There now seems to be a new problem, and the unsigned document to which I have referred says as follows:
I am unwell and unable to personally appear, and my usual treating doctor is overseas.
I am not at all sure why Ms Narkis is unable to personally appear. This is a very comprehensive document. The absence of her treating doctor is perplexing, because on at least one occasion in the last few weeks, an adjournment was granted on the basis that Ms Narkis said she was in hospital. Why the absence of her treating doctor would necessitate an adjournment, I am unable to say. Having adjourned the proceedings on the last occasion, I also made an order that the whereabouts of the child E be disclosed so that inquiries could be made about her welfare.
Ms Narkis immediately lodged an appeal against the last orders. I am told by both counsel this morning that those documents have not been served on the husband and Independent Children’s Lawyer. The notice of appeal was filed on the same day as the orders were made. One might question why someone who was too ill to come to Court was able to devote attention to the completion of a notice of appeal and the filing of it. In relation to the order that I made in relation to the whereabouts of the child E, I am told that Ms Narkis has failed to comply. I have also been told this morning that Ms Narkis indicated that she was going to be seeking a stay of the orders, but has not done so.
I begin by noting that at paragraph 59 of this document, Ms Narkis says she seeks the matter to be adjourned “pending advice from Doctor [AB]”, regarding her “capacity”. I infer from that Ms Narkis is indicating that her capacity is being challenged by both the independent children's lawyer and by the husband. Ironically, the independent children's lawyer sought and obtained a subpoena relating to Doctor AB and, for reasons that do not matter, those documents have not been provided.
Ms Narkis says she is seeking the adjournment because she is now suffering not only migraines, but also post-traumatic stress disorder. To some extent, Doctor AB’s evidence might be relevant to that, but presumably for one of two purposes. Either it goes to her capacity to conduct the litigation generally or alternatively, just the immediate period. Ms Narkis rejects there is any suggestion that she cannot parent the child or run the case at some appropriate future time. The evidence of Doctor AB might be relevant in relation to her capacity to care for the child, but having previously had evidence from him some weeks ago, nothing Doctor AB said, has shed any light on those matters.
In paragraph 1 of the document, Ms Narkis says that she does not know how long the case is listed or “much about this”. Again I am perplexed as to what she is talking about, because this case has been before the Court for a long time. Certainly, in respect of my own management of it, there have been hearings in 2016 and a number of occasions in 2017. I reject the suggestion that she does not know anything about it.
So concerned was I when I first became involved in the management of the case that I sequentially went through the entire list of applications that had been filed, because Ms Narkis complained that the Court had failed to deal with a lot of issues that she had raised. My reasons expressed in writing at that time will show that every one of the allegations was unfounded.
I then gave her the opportunity to list any outstanding interlocutory matters, whether they had been listed or not, on a specific date that I set aside. Ms Narkis failed to file any such material or application to deal with those issues.
One of the matters that Ms Narkis raised in those interlocutory hearings was whether or not the husband would be likely to attend. She was of the view that he was somehow using these proceedings as a tactic and that he had no intention of attending the Court. All I can say is he did and he does. He filed comprehensive material, both in respect of the property and the parenting matter, to which there has been no response by Ms Narkis.
Paragraph 3 of the document refers to Ms Narkis seeking to issue subpoenae regarding updated financial information to “assist” the Court. She goes on to say that that was necessary because the husband’s lawyers had refused or failed to provide the information that she wanted or the Court would need. Despite “multiple orders” (to use her expression), she says that information has not been provided. This is a curious statement, having regard to the reasons I gave in 2016 where all of the outstanding issues had been dealt with and, in particular, I set aside an interlocutory hearing day. The perplexing thing about the interlocutory hearing date was Ms Narkis’s explanation for not having prepared material was that she had been overseas with the child for the adjourned period. Accordingly, I reject any suggestion that there is any evidence before the Court about outstanding matters or orders.
The fourth paragraph goes on to say that Ms Narkis has submitted an objection to a further subpoena regarding her private medical records. Those matters have been ruled on before, both by myself and Johns J. The basis of both of those rulings was that there was relevance, at least at a provisional level, in relation to the material provided under subpoenae. I reject the suggestion that there is any basis for an objection in relation to her private medical records.
The fifth matter is an unusual complaint in that she says the other parties have been successful in issuing subpoenae regarding information about her, whereas, conversely, she was unsuccessful in seeking information about Mr Narkis. It seems that on 10 March, Ms Narkis lodged with the court a bundle of subpoenae addressed to a number of different people. They were a Mr BC of the Westpac Bank, requiring him to produce records from 2012 to date about the husband and a variety of companies; a Ms CD of Company DE, seeking documents – but I am not entirely sure what – and there is a series of subpoenae thereafter.
Each of those subpoenas has attached to it a handwritten letter addressed to the Family Court, apparently supporting an assertion about the relevance of those subpoenae. For example, in respect of Mr BC, Ms Narkis wrote:
This subpoena is requested either for attendance and production or, alternatively, for attendance for a Westpac private bank manager familiar with the Narkis portfolio. In circumstances where the real estate property mortgages, payments etc are at issue, and in order to ascertain how many are left in those properties ---
Presumably she means equity.
--- this subpoena is respectfully sought.
I do not propose to deal with each of those letters, because the Registrar refused to issue the subpoenae, writing on a referral sheet:
Difficult to read; documents sought appear too broad a category; six subpoenas to give evidence refused; matter is listed for 3 day trial on 20 March 2017; applicant should seek leave of judge to issue subpoenas and/or call witnesses as may extend the time estimate of the hearing.
That was 10 days ago, and I presume that Ms Narkis was advised of the rejection, but in any event, there is no application to review the Registrar’s decision, nor more importantly is there any suggestion that Ms Narkis is here today to seek leave to issue those subpoenas.
I do not know how these documents would be relevant to the proceedings when the husband has filed a comprehensive affidavit to which the wife has not responded.
Also attached to this bundle of documents was also a file search form, signed by Ms Narkis, who wanted to search – as best I can understand it – “second wife who married husband before his financial settlement with first wife”. I do not understand the relevance of that issue and no notice to the husband has been given. I have interpreted that as an application to the Registrar to release documents, but I suspect the Registrar would simply refer the matter to me, to hear what the husband has to say about it. Thus, the assertion that the Court somehow was unfair to Ms Narkis in refusing her application to issue subpoenas when everybody else had that opportunity, is without foundation. On the face of the documents, the Registrar acted appropriately.
If I turn then to paragraph 10, the note says that Ms Narkis is aware of the subpoena to Dr AB, and that he is unavailable. She submits that in the interests of natural justice, procedural fairness – the matter ought to be adjourned until at least her updated medical health evidence is available to the Court, on his return. The medical problem is said to be post-traumatic stress disorder. That is said to arise as follows.
Both at paragraph 2 of this document, and then paragraphs 11 to 22 – Ms Narkis refers to an assault by a former lawyer who had acted for her. By inference, and from what I have been told by senior counsel for the husband, drawn from subpoenaed police records, this assault is not a recent event. It was said to have occurred as long ago as July 2015, or perhaps early 2016. The curious feature about the date of the assault is that the police, according to Ms Narkis, have only one or two weeks ago laid charges against the lawyer.
Where the assault fits with the issue of post-traumatic stress disorder is unclear. Dr AB at no stage has raised the question of post-traumatic stress disorder. I am not sure whether Ms Narkis is self-diagnosing post-traumatic stress disorder, because if she is not, then who was the practitioner who actually made the diagnosis?
At paragraph 22, Ms Narkis asserts that whilst the assault on her was some time ago, the laying of charges against the lawyer, and the fact that the police have brought this to her attention, has resurrected the trauma. No previous assertion of post-traumatic stress disorder has been raised.
I go back to what I said a moment ago about Dr AB’s evidence not being the only possible source of advice, medical treatment or evidence. Why some other practitioner in that practice or some other medical practice or, as I mentioned before, the hospital, could not provide it, is not stated. This is the first I have heard an assertion of post-traumatic stress order.
Migraines are also mentioned, affecting the capacity of Ms Narkis but they do not seem to be affecting her capacity to prepare comprehensive documents. In case it was thought that the Court might be concerned about her capacity to care for the child, Ms Narkis at paragraphs 34 and 36 of the document, answers that. She says that her incapacity relates to her concentration on detailed litigation, but not her capacity to instruct lawyers or to parent the child. She says she is very confident that she can continue to provide love, support and care for the child.
I find it remarkable that someone who is suffering from post-traumatic stress disorder can isolate parts of the capacity arising from the trauma. No doubt Dr AB might have a different view. Ms Narkis is capable of preparing a very calculated and logical set of thoughts on paper in the form of a draft affidavit, and also being able to put together a cogent argument.
At paragraph 24, the issue about the assault is raised again. Ms Narkis makes an accusation against the husband’s lawyers and the independent children’s lawyer for having “repeatedly” brought up matters regarding her former lawyer since the assault took place. That is denied by the husband and the independent children's lawyer. They have been in possession of the police records, and have been aware of the incident.
At paragraph 26 of the document, Ms Narkis says that it has been difficult for her as “a victim of crime” to speak up about the threats and assaults against her, especially due to what she describes as a power imbalance between someone having to represent herself whilst having a lawyer engage in criminal conduct against her. She goes on to say that in her many requests to the Family Court to seek “a level playing field against highly-resourced opponents”, she has been denied that level playing field. I reject that assertion. I repeat what I have earlier said about the opportunities Ms Narkis has had, and in this case, specifically the interlocutory hearing that I set aside, for which she did not provide information.
Ms Narkis at paragraph 29 says the post-traumatic stress continues to impact on her ability to conduct Court proceedings as a self-represented litigant. That assertion is not supported by the way in which she has prepared this particular material. I reject the assertion that as a self-represented litigant, she is in some way disadvantaged.
At paragraph 35 of the document, Ms Narkis says that her lifestyle and environment do not involve significant negative emotions like the Court adversarial system against highly-oppositional parties. She goes on to say that the family report writer, Ms K, notes from her observations and all the material that “[The child] and I have a good relationship”. That was presumably drawn from various meetings with Ms K in 2016. It has been Ms Narkis who has been the one who has not cooperated.
To the extent that Ms Narkis makes constant reference to being a self-represented litigant and wanting funding so that she can obtain legal advice, I go back again to the interlocutory hearing, when I gave her the opportunity to make the application.
At paragraph 38 of the document, Ms Narkis says:
In order to have procedural fairness and natural justice, I need to be able to research and prepare extensive material, in circumstances where my resources have been removed and are not easily accessible.
The last observation seems to be a reference to some difficulty she has with access to computer facilities because her computer was stolen. But against that, in the argument that she presented to me when I previously questioned why she had not filed material when she was away overseas, she indicated that there were times where she could not get access to the internet because it was a Third World country. It is hard to understand what difficulty there is for her in relation to her ability to research and prepare extensive material. There is no foundation for that assertion. I point again to the fact that this current document is a very logically prepared set of paragraphs and Ms Narkis has very carefully thought out what she wants to say.
Ms Narkis also makes reference to the fact that she has little funds and that Mr Narkis continues to control all of the “matrimonial funds”. She says she is in receipt of government benefits and therefore cannot easily purchase office items. None of that has been put before the Court previously. Even if there was some suggestion that a funding order would assist her – there is no mention of how long it would take her to get her house in order.
At paragraph 45, Ms Narkis pleads for the assistance of a lawyer, but goes on to say that she taken action in the United States of America, and instructed, a private investigator. One wonders how that sort of expense can be incurred, if indeed it is expense, but she cannot engage lawyers here.
At paragraph 41 of the document, Ms Narkis says she continues to seek to prepare “in a professional, measured and sensible manner”. That again is a reference to her capabilities, which seem to me to fly in the face of the post-traumatic stress disorder and her migraines. It is difficult to understand what she means when she says that she needs to have some further time. No indication has been given to me as to what time will be sufficient.
At paragraph 45 of this document, Ms Narkis asserts that the husband is obtaining rental of about $10,000 a month from a property in the United States. That and other matters seem to be covered by the affidavit in reply of the husband. If indeed the affidavit material of the husband is not sufficient, then I am not sure how Ms Narkis proposes to challenge it.
One of the matters Ms Narkis raised in late 2016, was the question of what she called letters rogatory. At that time, I observed what the Australian law said about how information could be obtained from the United States. Since that time, Ms Narkis has done nothing further about it.
At paragraph 50, more comprehensive allegations are made about what property Mr Narkis is said to own but, as his senior counsel observes, all of those matters are dealt with in the affidavit material. Ms Narkis is not here today to support the possibility of even challenging some of the evidence of the husband by cross-examination.
I turn then to the adjournment application. There is no evidence before the Court to support a further adjournment of the matter. It is simply an assertion that she still needs further time to get material but nothing I have read would indicate that there is any prospect of that further material being obtained. The material is clearly predicated on the basis that she is able to obtain some form of litigation funding order. Two opportunities have already been given to her to get her house in order. I have little confidence that anything is going to happen now.
There are two parties to be considered in this case. Mr Narkis has every right to have his case heard and determined, particularly bearing in mind that it started in 2014. He has come from the United States, and most importantly of all, there is a child in these proceedings about whom the Court needs to make some inquiries. In my view, there is no basis for an adjournment of this proceeding, and it should go ahead.
That gives rise to the second question, which is one of whether the matter can proceed on an undefended basis. The power to hear a case on an undefended basis generally arises from chapter 11 of the Family Law Rules. Rule 11.02(2) provides that if a party does not comply with a rule or an order, the Court can determine the case as if it was undefended. In Tate & Tate (2000) FLC 93-047, the Full Court discussed that subject in an appeal and noted that if there was no live response, it having been struck out, then from the Court’s perspective, there was no live issue as between the applicant and the respondent. The Full Court referred to Australian Securities Commission & Macleod (1994) 130 ALR 717 and adopted what was said there. Drummond J said that failure to defend a Federal Court proceeding does not necessarily end in a default order. That applies in this Court. To that extent, the husband will still have to prove his case.
O’Ryan J in Brown & Brown (2004) FamCA 1067 said that to apply the provisions of chapter 11 of the Rules, the circumstances did not need to be exceptional. His Honour gave a prescient warning when he said:
…No litigant, whether legally represented or not, should harbour any doubt that manipulation of the Court's processes, through disregard of and deliberate non-compliance with its orders and directions will attract other than the strongest measures from the Court.
It is difficult in this case to know whether Ms Narkis is deliberately manipulating the Court’s processes. I find that having been given a number of opportunities, she has failed to do anything in terms of rectifying what she says is preventing her from having a level playing-field.
In Aon Risk Services Australia Limited v Australian National University [2009] HCR 27 the High Court said there said that case management was a very important part of the judicial process. Here the wife has done nothing to advance this case towards a final resolution.
Aon Risk Services was picked up by this Court in a Full Court decision which is known as Forster and Forster [2014] FamCAFC 88. There, the Full Court said:
We fully acknowledge that the decision whether or not to grant an adjournment of a trial was a matter very much within the discretion of the trial Judge. We also bear in mind the principles limiting the granting of adjournments which emerge from the High Court decision in Aon Risk Services Australia...
It is hard to see how I could give Ms Narkis any more opportunity than I have given her. Over a period of some six or seven months now I have set aside time for the interlocutory matters to be determined, I have given her opportunities to file material, I have given her opportunities to make applications for litigating funding, I have adjourned proceedings on the basis of very scant evidence about her medical condition. Now the court faces another day where she seeks again without evidence, to adjourn the trial. In my view, this is a case where enough is enough, and the matter needs to be determined, if for no other reason than Ms Narkis has not complied with a direction to provide details to the independent children's lawyer as to the whereabouts of the child. Her welfare is at stake.
On that basis, I grant leave for the husband to proceed on an undefended basis.
I certify that the preceding forth five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 20 March 2017.
Associate:
Date: 29 March 2017
19