Magolan and Caffery

[2020] FCCA 1445

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAGOLAN & CAFFERY [2020] FCCA 1445

Catchwords:
FAMILY LAW – Parenting – where allegations of sexual abuse of the child by the father – where allegation investigated by child welfare authorities but not substantiated – where child welfare authorities recommend the child’s time with father be supervised – the matter is to be transferred to the Family Court of Australia.  

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS MAGOLAN

Respondent: MR CAFFERY

File Number: DNC 141 of 2020

Judgment of: Judge Young

Hearing date: 15 May 2020

Date of Last Submission: 15 May 2020

Delivered at: Darwin

Delivered on: 15 May 2020

REPRESENTATION

Counsel for the Applicant: Ms Gray

Solicitors for the Applicant: Grays Legal NT

Counsel for the Respondent: Ms Dowd

Solicitors for the Respondent: Ward Keller Lawyers

ORDERS

UPON NOTING:

A.That there have been allegations of sexual abuse of the child by the father. The allegation has been investigated, not substantiated but with a recommendation by Territory Families that the child’s time with the father be supervised indefinitely.

THE COURT ORDERS:

1. That the matter is transferred to the Family Court of Australia and listed in the Darwin Circuit on a date to be advised to the parties.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 141 of 2020

MS MAGOLAN

Applicant

And

MR CAFFERY

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a matter involving a five year old child X who has allegedly made disclosures to her mother, and perhaps others, that, and this is an interpretation, that her father asked her to touch his penis. 

3. The matter was investigated by Territory Families who have written a letter to the mother, and presumably also to the father, that is annexed to the mother’s affidavit filed on 5 May.  The summary of concerns from the letter is as follows. 

   Territory Families Child Abuse Taskforce received a notification on 2 March 2020 where it was reported that X had disclosed that she was shocked on the weekend when daddy asked me to touch his bumbum and his dudu and asked me to touch his eyeball too.  When X was asked to repeat what she had said she pointed to her own groin area, then to her bottom area and then lifted her eyelid really wide with her hands and said he asked her to touch that too.

4. The letter went on to say:

   Based on the information Territory Families collected during the investigation it was established that there is insufficient evidence at this time to proceed with further investigation. 

5. The recommendation is as follows:

   While there is insufficient evidence to substantiate abuse, Territory Families has recommended the father organise someone within his family network to supervise future [time] with X.  The allegation is serious and the child clearly identified the father.  The investigation has now been finalised and it has been recommended that the case close. 

   Presumably it should be “time” but the word has been elided from the written sentence in the letter.

6. That of course raises some serious difficulties because where the child welfare authorities have been unable to substantiate an allegation but recommend that the child’s time with the father be supervised, effectively indefinitely, that is in my view an allegation of sexual abuse and a serious one.  In my view that merits the attention of a superior court, being the Family Court, in accordance with the protocol. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 4 June 2020