DARNELL & MAGNUSSON

FEDERAL CIRCUIT COURT OF AUSTRALIA

DARNELL & MAGNUSSON [2018] FCCA 2813

Catchwords:
FAMILY LAW – Interim arrangements for care of child aged nine – existing orders envisage child spending substantial and significant periods of time in care of the father – mother alleges child has made disclosure of physical and sexual abuse – mother seeks suspension of father’s time – application opposed by father – allegation denied – assessment of risk at interim stage – is risk of harm to child unacceptable if she spends time with father – what is proportionate response to degree of risk identified – questions to be asked – implications for child’s primary carer – best interests.

Legislation:

Family Law Act 1975, ss.4(1), 60B, 60CA, 60CC, 67Z, 67ZBB, 69ZW

Cases cited:

Deiter & Deiter [2011] FamCAFC 82
SS v AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654
M & M (1988) FLC 91-979
Slater & Light [2013] FamCAFC 4
N & S and the Separate Representative (1996) FLC 92-655
W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892

B & B (1993) FLC 92-357

Applicant: MS DARNELL

Respondent: MR MAGNUSSON

File Number: ADC 3979 of 2012

Judgment of: Judge Brown

Hearing date: 25 September 2018

Date of Last Submission: 25 September 2018

Delivered at: Adelaide

Delivered on: 28 September 2018

REPRESENTATION

Counsel for the Applicant: Ms Ross

Solicitors for the Applicant: Diane Myers Pty Ltd

Counsel for the Respondent: Ms Cocks

Solicitors for the Respondent: White Berman

ORDERS

1. The parties competing interim applications be dismissed.

2. The orders of 29 January 2014 do continue.

3. Pursuant to section 69ZW of the Family Law Act, the Department for Child Protection are ordered to provide to the court on or before 26 November 2018 the following documents:

   (a)any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;

   (b)any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;

   (c)any reports commissioned by the agency in the course of investigating a notification.

4. Pursuant to section 69ZW of the Family Law Act, SAPOL are ordered to provide to the court on or before 26 November 2018 the following documents:

   (a)copies of any reports or notifications of child abuse allegations or allegations of family violence involving either of the parties MS DARNELL and MR MAGNUSSON or the infant child [X];  and

   (b)the outcome or findings of any such investigations including antecedent reports for each of the parties.

5. Further consideration of the matter is adjourned to 3 December 2018 at 9:30am.

IT IS NOTED that publication of this judgment under the pseudonym Darnell & Magnusson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3979 of 2012

MS DARNELL

Applicant

And

MR MAGNUSSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. All cases involving allegations of sexual and physical abuse of a child are difficult…