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 of 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

1. 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.

2. 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 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: PAC 266  of 2018

Mr Ellison

Applicant

And

Ms Mallick

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties in these proceedings are engaged in a parenting dispute concerning the long term care arrangements for their three children aged nine, eight and six (“the children”). The Secretary of the Department of Communities and Justice (“the Department”) has intervened in the proceedings and currently holds parental responsibility for the children as serious risk factors were identified in the care of each parent.  

2. For reasons that will become clear on 20 February 2020 I made an order releasing a single expert report (“the Report”) to the Commissioner of the New South Wales Police Force (“the Police”) and the New South Wales Director of Public Prosecutions (“the DPP”). This report was prepared by a medical practitioner highly qualified in sexual health medicine and was obtained in circumstances where allegations of sexual abuse of the child aged six (“the youngest child”) were made against the father. That child was found to have contracted gonorrhoea in circumstances in which only the father (among all tested family members) returned a positive result for the same disease.  

3. The nexus between a diagnosis of gonorrhoea and sexual transmission as it may relate to the father and the youngest child is a matter that is central to the Report and is material of which the Police and the DPP are not aware. Although the use of the Report by Police and DPP is a matter for these authorities if released it is appropriate for both to be provided with it as sought by the Department.

4. I also made an order sought by the Department suspending the father’s time with the children on a short-term interim basis until an investigation into a recent report of sexualised behaviour displayed by the youngest and middle child (“the younger children”) is complete. For reasons I will explain it is in my view also in the children’s best interests to allow the Department to investigate that matter and properly assess the risk posed by the father in light of the Report, before considering a recommencement of the children’s contact with him.

5. On 18 February 2020 I made the orders related to these matters as sought and indicated that I would publish my reasons for doing so at a later stage. These are those Reasons.

Background

1. Prior to the commencement of these proceedings the parties were engaged in protracted litigation in the Children’s Court of New South Wales concerning the children. During this time the children lived in various care arrangements with each parent and the Minister for the Department.

2. Shortly after the Children’s Court proceedings were complete the father sought to recover the children from the mother by way of an Initiating Application filed in January 2018 in the Federal Circuit Court. Orders were made in that court returning the children to the father’s primary care and continuing the arrangement for them to spend some unsupervised time with the mother.

3. In March 2018 the Department intervened in the proceedings.

4. The proceedings were then transferred to this Court due to their complexity in May 2018.

5. On 1 June 2018 the Department filed an affidavit in which serious concerns were raised about the parenting capacity of each parent. The caseworker deposed to both parents “demonstrat[ing] historic deficiencies in their parenting of the children” but particular concern was held about the risk of harm posed to the children in the father’s household. The general tenor of this evidence was that the father could not meet the children’s educational and developmental needs on his own. Of greater concern was the suggestion based on an investigation conducted by the Joint Investigation Response Team (“JIRT”) in 2016 that the youngest child had contracted gonorrhoea while in the father’s care, albeit that JIRT concluded at the time that although this child was at risk of sexual harm, a person causing harm was not identified.

6. On 18 June 2018 the Independent Children’s Lawyer (“ICL”) was granted leave to make an oral application that parental responsibility for the children be allocated to the Minister for the Department. Around this time concerns were also raised about the father’s sexual offending as a juvenile and the parties were directed to file information regarding this matter.

7. Following an interim hearing on 20 July 2018 orders were made restraining both parties from permitting the children to live with or come into contact with each of them. For reasons outlined in the Judgment delivered on 8 August 2018[1], I assessed the level of risk of harm posed to the children in both households to be unacceptable. I then made orders that the Minister of the Department hold sole parental responsibility for the children and that the children live as directed by the Secretary.

   [1]Ellison & Mallick and Anor [2018] FamCA 603.

8. On various occasions from early November 2018 family members were interviewed and observed by a forensic psychologist for the purposes of an expert report. At the time the expert report was written the children remained in the care of the Department and spent limited supervised contact with each parent pursuant to the then interim orders.

9. In her report dated 6 March 2019, the expert noted that “[the father] does not appear to recognise risks to his children’s safety… and does not seem to understand the level of risk to the children in his decisions”. It was the expert’s recommendation that the children not be placed in his long-term care. The expert also observed that at that time the mother “ha[d] the capacity to care for her children” and was not opposed to her spending increasingly significant and substantial time with the children.

10. In around August 2019 a relevant officer in the Department was of the view that the restoration of the children to the mother’s care was “viable with significant support”.

11. On 25 October 2019 orders were made as sought by the Department and as agreed to by the ICL that the mother’s supervised time with the children increase to three hours per week. As the father did not consent to such an order reasons for making it were given at the time.

12. Since the commencement of proceedings the Department has received a number of reports of sexual harm allegedly perpetrated by the father and the risk he poses on this basis. In the caseworker’s affidavit filed 26 August 2019 it was indicated that the Department was not supportive of restoring the children to the father’s care due to his juvenile sexual offending, recent allegations of grooming behaviour and to a greater extent the youngest child’s contraction of gonorrhoea whilst in his care.

13. Notwithstanding that he was the only family member who tested positive for gonorrhoea, the father denied he had sexually abused the youngest child in any way and denied that he had acted in an untoward manner at any time to any person that would give rise to an unacceptable risk of harm to the children.

14. As I understand it the father continues to maintain the position expressed when interviewed by JIRT in 2016 about this matter, that gonorrhoea could have been transmitted to the youngest child through non-sexual means. Curiously, at the time of the investigation JIRT seemed to attach some credence to his claims of the possibility of a benign contracting of the illness as it concluded that the youngest child was at risk of sexual harm but could not identify a person causing harm.

15. In these circumstances, and to assist the Court in the assessment of risk posed by the father, a second single expert witness (with expertise in sexual health medicine and venereology) was appointed in September 2019 to report upon matters relating to the youngest child’s contraction of gonorrhoea. The Report of this expert was released to the parties on 4 November 2019.

The Report

1. In his report the disease expert first expounds general information about gonorrhoea including modes of transmission, incubation period, testing and diagnosis, the duration of the infection if left untreated and treatment protocol and its effectiveness.

2. According to the Report, the primary site of genital gonorrhoea infection in pre-pubertal girls is the vagina and pre-pubertal girls are more susceptible to the disease than adult females. The expert noted that while the incubation period of the gonorrhoea infection in children is largely unknown, there is no evidence to suggest that the incubation period would be any different to that of an adult (one to 14 days).

3. The Report further noted that the organism responsible for gonorrhoea infection, Neisseria gonorrhoea, was detected on the father’s urine specimen dated 24 October 2016 and on the vulval swab from the youngest child dated 17 October 2016. The expert opined that the diagnostic method used to identify the father’s infection has “a high degree of accuracy” and although the same method is not well-validated in pre-pubertal children, he further stated that “the fact that gonorrhoea was also cultured from [the youngest child]’s vulval swab confirms that [she] was infected with gonorrhoea in her genital area”.

4. When the expert reviewed the father’s medical records from 2016 he noted that the father’s report of never having had urethral (penile) discharge was at odds with medical records of October 2016 that indicated the father had experienced “urinary discharge” “fever” and “dysuria” since April of that year. The expert opined that these symptoms were have been caused by the chlamydia and/or gonorrhoea infections the father was later confirmed to have.

5. With reference to studies and well-founded literature relating to gonorrhoea in children, the expert then discussed the probability that the youngest child contracted gonorrhoea from the father.

6. While the expert stated that it is not possible to express this probability as a percentage, he opined that “it is highly likely that the [youngest child] contracted genital gonorrhoea from her father via sexual contact”.

7. While the expert noted that it is not possible to express as a percentage the probability that the youngest child contracted gonorrhoea by non-sexual means from the father, the expert opined that non-sexual transmission of gonorrhoea to a child is “very rare” and that the evidence to support this route of transmission is weak.

8. The expert also addressed the potential of non-sexual gonorrhoea transmission through a range of materials, as contended by the father. Citing a range of studies which explored non-sexual transmission through cotton towels, toilet seats and toilet paper, the expert concluded: 

   Although gonococci can occasionally be cultured (grown) from a range of materials 24 hours or more after being artificially inoculated onto a surface, there is virtually no evidence that transmission to a human can occur from such surfaces… Gonococci are susceptible to drying and in such situations rapidly become non-viable.

9. As to the father’s suggestion that he had tested positive to a different strain of gonorrhoea to the strain contracted by the youngest child, the expert claimed there to be no evidence to that effect.

10. The expert summarised his view as:

    It is my opinion that the vast majority of gonorrhoea infection in children occurs as a result of sexual abuse. By far, the most efficient mode of gonorrhoea transmission is via sexual contact. My opinion is that non-sexual transmission of gonorrhoea may rarely occur, but that the material provided to me does not contain any plausible explanation for non-sexual transmission in this case. Given that [the youngest child] was staying with [the father] in the week prior to her vaginal discharge being noticed, that [the father] reported having penile symptoms consistent with gonorrhoea within 4 days of [the youngest child]’s vaginal discharge being noticed, and that both [the youngest child] and [the father] had confirmed genital gonorrhoea infection, the most likely explanation is that [the youngest child] contracted gonorrhoea as a result of sexual abuse by [the father].

Application to release expert report

1. Following the release of the Report the matter was listed for a directions hearing before me on 18 February 2020.

2. In the course of that hearing the Department made oral submissions in support of their application for an order that the Report be published to Police and the DPP.

3. The father opposed the application for the release of the Report on the basis that the matters relating to the youngest child’s contraction of gonorrhoea had been previously investigated and closed by JIRT. It was also the father’s concern that he was not interviewed by the expert for the purposes of the Report and wanted the opportunity to cross-examine the expert witness in the course of these proceedings before any such release was contemplated. The mother and the ICL did not object to either of the orders sought by the Department.

The Law and Discussion

1. Part 15.5 of the Family Law Rules 2004 (“the Rules”) contains the general rules regarding expert evidence. Sub-rule 15.46(h) relevantly provides:

   The Court may, in relation to the appointment of, instruction of, or conduct of a case involving a single expert witness make an order including an order:

   (h) that a report not be released to a person, or that access to the report be restricted.

2. The report was released to the parties including the Department pursuant to orders made on 4 November 2019. One of those orders provided that except with the Court’s permission no party was to release the report or provide access to it to any person other than the parties, their lawyers and the ICL. For this reason the Department is not at liberty to provide the Report to the Police or DPP without an order from the Court.

3. Another rule which contemplates the Court’s power to grant access to information obtained in proceedings as the Court may deem appropriate in the circumstances of a case is sub-rule 24.13(1) (c) (ii). This rule provides:

   (1) The following persons may search the court record relating to a case, and inspect and copy a document forming part of the court record:

   (c)with the permission of the court, a person with a proper interest:

   (ii)in information obtainable from the court record in the case.

4. There can be no doubt that the Police and the DPP would have proper interest in the Report, especially in circumstances where the matters to which the Report refers have in the past been the subject of investigations by JIRT. JIRT works closely with these authorities and the previous conclusions relating to the youngest child’s risk of sexual harm are now challenged by material contained in the Report. I am of the view that it would greatly assist both these authorities to be aware of this information.

5. It may also be reasonably expected that any Departmental decision about the care of the children for whom the Minister holds parental responsibility would take into account any investigation police may wish to conduct.

6. In the absence of a request made by the Police or DPP to obtain the information contained in the Report (of which both agencies may not be aware), it may also be the case that the Court is even required to provide this information itself to these agencies.

7. In Re W: Publication Application[2], the Full Court considered the Court’s responsibility for the protection of children generally and its power to refer matters to the proper authorities. At 796 it was observed:

   It appears to us that judges of this Court have a responsibility to ensure that such information is passed on to the relevant child protection authorities, that is, a judgment which contains findings or other information which have real significance in relation to the occurrence of or risk of child abuse and where the transmission of that information would be of assistance to the child protection authorities in carrying out their responsibilities.  This obligation arises from the responsibilities under the legislation which the Court has in relation to the protection of children from abuse and the division of powers between this Court and those authorities.  This is especially demonstrated by the terms of s.43(c), previously referred to, and by the general nature of the Court's responsibilities towards children and the particular concerns relating to abuse of children.  It would be untenable for this Court to be possessed of relevant information of this type and yet not make that available to the authorities charged in Australia with the general protection of children.

   [2](1997) 21 Fam LR 788.

1. The court went on to say:

   This Court and other Courts from time to time forward to the Attorney-General judgments which may disclose what might broadly, for present purposes, be described as criminal or illegal activities by one of the parties (or a witness); for example, a particular criminal offence, perjury, social security fraud, breaches of income tax legislation.  This would, of course, in appropriate circumstances, include a case where there was evidence of sexual or other offences against a child.  This is done because the Court has an obligation to make that disclosure where information it possesses may not otherwise be known to the relevant authorities.

2. It was also submitted on behalf of the Department that its officers may be required to bring the contents of the report to the attention of New South Wales Police or another appropriate authority pursuant to s 316A of the Crimes Act 1900 No 40 (NSW). That section provides:

   316A   Concealing child abuse offence

   (1)  An adult—

   (a)  who knows, believes or reasonably ought to know that a child abuse offence has been committed against another person, and

   (b)  who knows, believes or reasonably ought to know that he or she has information that might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence, and

   (c)  who fails without reasonable excuse to bring that information to the attention of a member of the NSW Police Force as soon as it is practicable to do so,

   is guilty of an offence.

3. Section 316A(9) defines a child abuse offence to include:

   (b) an offence under … Division 10, 10A, 10B or 15 of Part 3 (offences of a sexual nature) where the alleged victim is a child.

4. The operation of s 316A combined with the multiplicity of provisions in the Act underlining the Court’s responsibilities in the protection of children in proceedings, would in my view see the release of the expert report not only necessary, but appropriate and authorised.

5. For the foregoing reasons and in accordance with the Rules relating to expert evidence I ordered the Report dated 28 October 2019 be released to the Police and DPP.

Suspension of father’s time with the children

1. As previously indicated I also made an order that the children’s time with the father described as his “scheduled contact visits” be suspended until 31 March 2020 pending the outcome of the Department’s assessment of a risk of harm report made on 25 January 2020. This report concerned sexualised behaviour displayed by the younger children in early January.

2. In the course of oral submissions, I enquired how the limited time that the children were spending with their father in a supervised setting pursuant to the current interim orders in some way impeded the investigation by the Department and it was submitted on the Department’s behalf that as a matter of course it would be more suitable to conduct the investigation where the children do not spend time with their father or there was a risk that the investigation could be “tainted”.

3. I am of the view that as the Department has already commenced its investigation including interviewing the younger children shortly after receiving the report, there would be little impediment to their investigation if the father’s very limited contact time of once per month were to continue.

4. In my view, the more compelling reason to suspend the father’s time is the contents of the expert report discussed earlier. There is a real likelihood that a court may ultimately have reservations about whether any benefit may accrue to the children from spending time with the father if the opinion expressed by the highly qualified medical practitioner that the youngest child contracted gonorrhoea as a result of sexual abuse is accepted. I further note there are ongoing concerns about the father’s juvenile sexual offending and the more recent allegations of grooming behaviour made against him.

5. For these reasons it is in my view in the children’s best interests to make an order suspending their time with the father until any further assessment by the Department of the risk of harm posed to them including by the father, is completed.

6. Although the father opposed the suspension of the children’s time with him on a short term basis, the reality is that the children have not spent such time with him since November 2019. Having regard to the limited period of time for the suspension sought by the Department, the order made would merely continue the current circumstances for the children of spending no time with their father for a short period of time. In the foregoing circumstances, and as the need to protect the children, in particular arising from abuse, looms large in these proceedings I made the orders sought by the Department.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 24 March 2020.

Associate:

Date:  24 March 2020