Ellison and Mallick and Anor - [2018] FamCA 603

FAMILY COURT OF AUSTRALIA

ELLISON & MALLICK AND ANOR

[2018] FamCA 603

FAMILY LAW – CHILDREN – Interim parenting – Where both parents present an unacceptable risk of harm to the children –Where there is an unacceptable likelihood that the father will sexually abuse the children – Sole parental responsibility given to the Minister – Both parents are restrained from permitting any of the children from living with them or contacting them – Where the father has extensive history of juvenile sexual offending – where the mother has not acted protectively of the children.

Family Law Act 1975 (Cth) 60CA,60CC, 65D

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT:

Mr Ellison

RESPONDENT:

Ms Mallick

INTERVENOR:

Secretary, Department of Family and Community Services NSW

INDEPENDENT CHILDREN’S LAWYER:

Ark Law Lawyers

FILE NUMBER:

PAC

266

2018

DATE DELIVERED:

8 August 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

6 & 20 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Forshaw Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Ms Mallick in person

COUNSEL FOR THE INTERVENOR:

Mr Anderson

SOLICITOR FOR THE INTERVENOR:

Crown Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Neville

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ark Law Lawyers

Orders

Each of the parents is restrained from permitting any or all of the children X born … 2010, Y born … 2011, Z born … 2013 (“the children”) to live with or come into contact with them.
Pending further order, the Minister shall have sole parental responsibility for the children.
Pending further order, the children are to live with as directed by delegate of the Secretary of the Department of Family and Community Services.
The proceedings are listed for further case management on 3 August at 2.15pm.

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 Ellison & Mallick and Anor 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 PARRAMATTA

FILE NUMBER: PAC266 of 2018

Mr Ellison

Applicant

And

Ms Mallick

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern the three young children of Ms Mallick (“the mother”) and Mr Ellison (“the father”).The Department of Family and Community Services (“the Department”) have intervened in the proceedings and currently hold parental…

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.

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Details

Case: [2018] FamCA 603
Decision Date: 8 August 2018

CaseChat Overview and Summary

In the matter of *Ellison and Mallick and Anor*, heard before Hannam J, the dispute concerned the welfare of three children, X, Y, and Z. The court was required to make orders regarding the children's living arrangements and parental responsibility.

The central legal issue before the court was the determination of appropriate orders to ensure the safety and well-being of the children, given the circumstances presented. This involved considering the parental responsibility of the named parties and the role of the Minister and the Department of Family and Community Services.

Hannam J made orders restraining each of the parents from permitting the children to live with or come into contact with them. Pending further order, the Minister was granted sole parental responsibility for the children, and the children were to live with arrangements directed by a delegate of the Secretary of the Department of Family and Community Services. The proceedings were listed for further case management.

Orders

Orders of the court

Each of the parents is restrained from permitting any or all of the children X born … 2010, Y born … 2011, Z born … 2013 (“the children”) to live with or come into contact with them.

Pending further order, the Minister shall have sole parental responsibility for the children.

Pending further order, the children are to live with as directed by delegate of the Secretary of the Department of Family and Community Services.

The proceedings are listed for further case management on 3 August at 2.15pm.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.