TARLON & SCALERA

[2020] FCCA 3554

FEDERAL CIRCUIT COURT OF AUSTRALIA

TARLON & SCALERA [2020] FCCA 3554

Catchwords:
FAMILY LAW – Parenting – whether unacceptable risk of harm to a child – concerning a child aged seven and a half – where there is an allegation of sexual abuse – where the allegation has not been substantiated on the basis of the material available – where the parties seek a transfer to the Family Court – on the basis of the allegation of sexual abuse the matter be transferred to the Family Court. 

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR TARLON

Respondent: MS SCALERA

File Number: DNC 506 of 2015

Judgment of: Judge Young

Hearing date: 14 December 2020

Date of Last Submission: 14 December 2020

Delivered at: Darwin

Delivered on: 14 December 2020

REPRESENTATION

Counsel for the Applicant: Ms Cooper

Solicitors for the Applicant: Maleys Barristers & Solicitors

Counsel for the Respondent: Ms Noble

Solicitors for the Respondent: Withnalls Lawyers

ORDERS

THE COURT ORDERS BY CONSENT THAT:

1. The proceedings are transferred to the Family Court of Australia at Darwin on a date to be fixed by that Court.

2. The parties be at liberty to inspect only and the parties’ legal representatives and the Independent Children’s Lawyer (if appointed) be at liberty to inspect and photocopy the document produced by Territory Families in response to the Notice of Risk filed in these proceedings NOTING THAT this information is confidential and cannot be disclosed to any other person or entity without an Order of this Court and NOTING penalties may apply pursuant to s.121 of the Family Law Act 1975 if the report is printed or published other than as directed in these proceedings.

3. Pending further Order, the parties’ legal representatives are restrained from providing a copy of the document to any other person.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 506 of 2015

MR TARLON

Applicant

And

MS SCALERA

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 parenting matter concerning the child X who is seven and a-half years old.  According to the mother, on 20 July 2019 the child disclosed to her various things, essentially that the child complained that at the father’s house she and the father were naked together.  They played “teachers” naked and the like.  The matter was immediately reported to the police and there is a running sheet attached to the mother’s affidavit which contains in handwritten notes the course of the interview.  It does not go much beyond what I have said.  The child was clearly unable to provide any details of what the play may consist of.  At one point when she was asked by the interviewer what “getting naked” meant the child said she did not know.  Apart from the child saying that she and her father got naked there is nothing else, really, in the interview that suggests sexual assault.

3. The child abuse task force, which is a police task force in essence, may well have conducted that interview.  Not surprisingly, the matter was not taken any further.  I have seen the response from Territory Families to the notice of risk and it is simply said that there was a concern of sexual exploitation which was investigated.  That is the notice of risk dated 20 July 2019 and finalised in September 2019 with the outcome of no abuse or neglect found.  Really there was no other outcome possible on the absence of material disclosed in the forensic interview. 

4. I am told that the parties wish to have this matter transferred to the Family Court.  Ms Noble eventually pitched her submissions at number six in the protocol for the division of work between the Family Court and the Federal Circuit Court.  Initially Ms Cooper had said the matter is likely to take more than four days.  There was nothing I heard that suggested that the matter would take more than four days.

5. The relevant protocol is that there are:

   Serious allegations of sexual abuse of a child warranting transfer to the Magellan List or similar list where applicable...

6. The Magellan List, of course, being a reference to a former list or management process adopted by the Family Court to deal with sexual abuse allegations.  I must say I have hesitated in this matter because it appears to me on the material in front of me that there could not be any finding of sexual abuse.  That does not appear possible.  But, of course, these are all questions of degrees of risk and whether the risk is acceptable or unacceptable.  I do consider it is a serious allegation of sexual abuse, notwithstanding that the material is so scant as to really not permit any positive finding of sexual abuse.  It is, nevertheless, a serious allegation and I consider that, as I say after some hesitation, that it probably does come within the terms of the protocol.  So I propose to transfer the matter to the Family Court. 

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

Associate: 

Date: 13 January 2021