Sahadi & Savva and Anor - [2016] FamCAFC 65

FAMILY COURT OF AUSTRALIA

SAHADI & SAVVA AND ANOR

[2016] FamCAFC 65

FAMILY LAW – APPEAL – APPLICATION FOR LEAVE TO APPEAL – Where the appellant required leave to appeal against interlocutory orders – Whether leave to appeal should be granted – Application of test set out in Medlow & Medlow (2016) FLC 93-692 – Where the nature of the issues raised and their implications for the hearing of a serious criminal trial justify a grant of leave – Leave to appeal granted.

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Release and use of expert report – Where the Police were granted leave to inspect and copy court file – Where Police applied to release expert report for use in criminal prosecution – Whether Police subject to implied obligation not to disclose the report – Waiver of an implied obligation – Where pursuant to r 15.10(3)(c) of the Federal Circuit Court Rules 2001 report released to the parties involved in the criminal proceedings and the Director of Public Prosecutions – Whether the best interests of the child were the paramount consideration – Appeal dismissed.

Director of Public Prosecutions Act 1986 (NSW) s 15A
Family Law Act 1975 (Cth) ss 11C, 60CA, 60CC, 62G, 64B, 67ZA, 69ZN, 94AA, 121

Family Law Regulations 1984 (Cth) reg 15A
Family Law Rules 2004 (Cth) r 24.13
Federal Circuit Court Rules 2001 (Cth) rr 2.08, 15.07, 15.09, 15.10, 15.11, 23.01A

Carr and Anor v Finance Corporation of Australia Limited (1981) 147 CLR 246
CDJ v VAJ (1998) 197 CLR 172
Commissioner of Taxation & Darling and Anor (2014) FLC 93-583
Gronow v Gronow (1979) 144 CLR 513
Hall v Nominal Defendant (1966) 117 CLR 423
Hearne and Anor v Street and Ors (2008) 235 CLR 125
House v The King (1936) 55 CLR 499
Licul and Ors v Corney (1976) 180 CLR 213
Medlow & Medlow (2016) FLC 93-692
Paringa Mining & Exploration Company PLC v North Flinders Mines Limited and Ors (1988) 165 CLR 452
R v Cook; Ex Parte Twigg (1980) 147 CLR 15
Sheill & McMurr(No 2) (2014) FLC 93-599

APPELLANT:

Ms Sahadi

FIRST RESPONDENT:	Mr Savva
SECOND RESPONDENT:	Commissioner of the New South Wales Police Force

FILE NUMBER:

SYC

2338

2011

APPEAL NUMBER:

2016

DATE DELIVERED:

29 April 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Ryan & Aldridge JJ

HEARING DATE:

22 April 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

18 March 2016

LOWER COURT MNC:

[2016] FCCA 589

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Lowe

SOLICITOR FOR THE APPELLANT:

Swifte Law

SOLICITOR FOR THE FIRST RESPONDENT:

Mr Massey of Barber and Massey

COUNSEL FOR THE SECOND RESPONDENT:

Ms Gerace and Ms McGee

Orders made on 22 April 2016

The Appellant have leave to make an oral application to amend the Notice of Appeal.
The Appellant has leave to further amend the Amended Notice of Appeal filed on 19 April 2016 to include an application…

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: [2016] FamCAFC 65
Decision Date: 29 April 2016

CaseChat Overview and Summary

Sahadi & Savva and Anor involved an application for leave to appeal against interlocutory orders made in family law proceedings. The appeal concerned the release and use of an expert report in criminal proceedings. The appellant required leave to appeal, and the court was required to decide whether such leave should be granted.

The legal issues before the court included the application of the test set out in Medlow & Medlow for granting leave to appeal and whether the Police were subject to an implied obligation not to disclose the expert report, and if such an obligation could be waived. The court also needed to determine whether the best interests of the child were the paramount consideration when releasing the report for use in criminal proceedings.

The court granted leave to appeal, finding that the nature of the issues raised and their implications for the hearing of a serious criminal trial justified the grant of leave. The court concluded that the Police were not subject to an implied obligation not to disclose the report, and that the obligation could be waived. Furthermore, the court determined that the release of the report was in the best interests of the child, given the circumstances of the case.

The court dismissed the appeal, affirming the lower court's decision to release the expert report for use in the criminal prosecution.

Orders