ELLISON & MALLICK - [2020] FamCA 179

FAMILY COURT OF AUSTRALIA

ELLISON & MALLICK

[2020] FamCA 179

FAMILY LAW – PRACTICE AND PROCEDURE – Publication of single expert report – Where the Department of Communities and Justice seeks release of the single expert report relating to possible sexual abuse of youngest child to the Commissioner of the New South Wales Police and the New South Wales Director of Public Prosecutions – Where it is appropriate to release information to proper authorities.

FAMILY LAW – CHILDREN – Where parental responsibility allocated to the Minister of the Department of Communities and Justice – Where allegation made that father sexually abused youngest child – Where single expert report prepared exploring sexual abuse allegation against father – Where likely father sexually abused youngest child based on medical expert opinion – Where younger children are alleged to have engaged in sexualised behaviour – Where Department is investigating sexualised behaviour report and seeks suspension of father’s time with children – Order made suspending father’s time on short-term interim basis.

Crimes Act 1900 No 40 (NSW) s 316A
Family Law Act 1975 (Cth) ss 43, 69ZN, 121
Family Law Rules 2004 (Cth) rr 15.5, 24.13

Ellison & Mallick and Anor [2018] FamCA 603
Re W: Publication Application (1997) 21 Fam LR 788

APPLICANT:

Mr Ellison

RESPONDENT:

Ms Mallick

INTERVENOR:

Secretary, Department of Communities and Justice

INDEPENDENT CHILDREN’S LAWYER:

Ark Lawyers

FILE NUMBER:

PAC

266

2018

DATE DELIVERED:

24 March 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

18 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Kaiti

SOLICITOR FOR THE APPLICANT:

Inner West Solicitors Pty Ltd

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Kathryn Renshall Layers

COUNSEL FOR THE INTERVENOR:

Mr Anderson

SOLICITOR FOR THE INTERVENOR:

Crown Solicitors Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Anderson (mentioned on behalf of the ICL)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ark Law Lawyers

Orders

Copies of the report by Dr G dated 28 October 2019 may be:
(a) given and published to:
(i)the Commissioner of the New South Wales Police Force and all such police officers and persons as the Commissioner might reasonably permit or authorise, including members of the Joint Child Protection Response team;
(ii)the Director for Public Prosecutions (New South Wales) and all such employees and persons as the Director might reasonably permit or authorise; and
(b)published to and permitted to be utilised in any criminal proceeding initiated or continued by any of those mentioned in paragraphs (i), (ii) or (iii) of the previous order.
The father’s scheduled contact visits with the children be suspended until 31 March 2020, pending the outcome of the Department’s assessment of the Risk of Harm report relating to the children dated 25 January 2020.

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 has been approved by the Chief Justice pursuant to s…

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: [2020] FamCA 179
Decision Date: 24 March 2020

CaseChat Overview and Summary

In the Family Court of Australia, Justice Hannam considered an application by the Department of Communities and Justice (the Department) for the release of a single expert report concerning allegations of sexual abuse against the youngest child. The report was prepared by Dr G and dated 28 October 2019. The Department sought to provide this report to the Commissioner of the New South Wales Police and the New South Wales Director of Public Prosecutions.

The court was required to determine whether it was appropriate to release the single expert report to law enforcement and prosecuting authorities, and whether to suspend the father's contact with the children. The proceedings involved allegations that the father had sexually abused the youngest child, and that younger children had engaged in sexualised behaviour. Parental responsibility for the children had been allocated to the Minister of the Department.

Justice Hannam reasoned that it was appropriate to release the report to the relevant authorities given the serious nature of the allegations and the Department's ongoing investigation into the reported sexualised behaviour. The court applied principles relating to the disclosure of information to proper authorities when child protection concerns are raised. The court also made an interim order suspending the father's contact with the children until 31 March 2020, pending the outcome of the Department's assessment of a Risk of Harm report.

Orders

Orders of the court

Copies of the report by Dr G dated 28 October 2019 may be:

(a) given and published to:

(i) the Commissioner of the New South Wales Police Force and all such police officers and persons as the Commissioner might reasonably permit or authorise, including members of the Joint Child Protection Response team;

(ii) the Director for Public Prosecutions (New South Wales) and all such employees and persons as the Director might reasonably permit or authorise; and

(b) published to and permitted to be utilised in any criminal proceeding initiated or continued by any of those mentioned in paragraphs (i), (ii) or (iii) of the previous order.

The father’s scheduled contact visits with the children be suspended until 31 March 2020, pending the outcome of the Department’s assessment of the Risk of Harm report relating to the children dated 25 January 2020.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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