TASKER & TASKER

[2015] FamCA 813

FAMILY COURT OF AUSTRALIA

TASKER & TASKER [2015] FamCA 813

FAMILY LAW – INTERVENTION – request for the Secretary of the NSW Department of Family and Community Services to intervene – reasons behind order pursuant to Section 91B of the Family Law Act 1975 (Cth)

Family Law Act 1975 (Cth) s 91B

APPLICANT: Mr Tasker

RESPONDENT: Ms Tasker

INDEPENDENT CHILDREN’S LAWYER: Steven Ng

FILE NUMBER: PAC 5182 of 2014

DATE DELIVERED: 30 September 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 21 September 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Kamiya of Cathy Mulley Kamiya Lawyers

SOLICITOR FOR THE RESPONDENT: Ms Morrison of Mahony Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Ng of Adams & Partners

Orders Made on 21 September 2015

1. The Independent Children’s Lawyer is to make enquiries with any other possible Contact Service to ascertain whether that service would be suitable for the father’s time with the children.

2. Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Family and Community Services is requested to intervene in these proceedings.

3. In the event that the Secretary intervenes, he/she is to file and serve a Notice of Intervention before next mention date on 24 November 2015.

4. Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Secretary of the NSW Department of Family and Community Services, or his/her delegate, to inspect and copy any documents on the Court file forming part of the Court record.

5. The matter be adjourned to 24 November 2015 at 10.00am for mention.

6. The father is to file and serve any Application in a Case with respect to interim orders by 3 November 2015.

7. The mother is to file and serve any Response to the Application in a Case by 17 November 2015.

8. By consent, pending further order the mother is restrained from allowing the children to come in contact in any circumstances with Mr B.

Notations

1. Consent Orders made on 12 February 2015 in the Federal Circuit Court provide for the father to spend supervised time with the children at the Central West Contact Service.  The father has been found unsuitable for that service.

2. The Independent Children’s Lawyer is to investigate and obtain Court records in relation to the Apprehended Violence Order in place for the protection of the mother and children and also with respect to the father’s criminal charge.

3. A short judgment is to be delivered in Chambers with respect to the reasons for the invitation to the Secretary of the NSW Department of Family and Community Services to intervene which will include matters relating to the father’s criminal charge and some of the matters referred to in the Child Responsive Memorandum.  The parties consent to the Court having access to documents produced by the District Court of NSW.

4. A short period of time will be available on 24 November 2015 to deal with any interim application.

5. The mother is to provide to the Independent Children’s Lawyer further identification details concerning Mr B.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tasker & Tasker has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5182  of 2014

Mr Tasker

Applicant

And

Ms Tasker

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 21 September 2015, I requested the Secretary of the New South Wales Department of Family and Community Services intervene in parenting proceedings involving Mr Tasker (“the father”) and Ms Tasker (“the mother”) concerning their three children, C (13), D (12) and E (8).

2. In this judgment I outline my reasons for making such a request.

Background

1. The mother, who is now 31, and the father, who is now 51, commenced a relationship when the mother was 14 and the father was 34.  They had been next door neighbours.

2. The father has been previously married and has a number of adult children.  The father does not refer to these children in his affidavit but told the Family Consultant that he had three adult children.  The mother says to her knowledge the father has four other children from previous relationships.

3. The parties began living together when the mother was 16.

4. The parents’ first child, C, was born in 2001 and is now 13.

5. The parties married in 2002.

6. A second daughter, D, was born in 2003 and is now 12 and the third child a son, E, was born in 2007.

7. Throughout the relationship the mother was the primary carer of the children and the father worked outside the home and provided for the family financially.

8. The mother alleges that throughout the relationship the father was verbally abusive and denigrated her to which the children were exposed.  Although the mother does not make any allegations of physical abuse, she does allege that in July 2014 in the context of her discussing with the father her intention to leave the relationship, the father threatened to kill her if she moved out for which he subsequently apologised.

9. After this discussion the parents separated but both remained living in the former family home.  The mother says that on 3 August 2014 in the course of a heated argument in the home the father said words to the effect of “I will just end it, I will go get a gun and shoot all of us, then shoot myself.  If I can’t have you then no-one will.”  The mother said that she did not take the threat seriously as she thought the father was just hurt and angry that she wanted to end the relationship.  Although the mother does not refer to this in her affidavit, in the statement she gave to police she said that during this incident the father was yelling loudly, his face was very red and his fists were clenched by his sides and she thought that he was going to punch her.

10. On 5 August 2014, the date on which the mother says “the relationship officially ended”, the father said to the mother in the course of a telephone conversation “might as well just end this shit, I should just put a shotgun to your head”.  Later in that day the mother said that she did not feel safe in her home and genuinely feared for her life and had never seen the father so angry or aggressive.  She attended a police station and made a statement to police.  Police charged the father with three counts of stalking/intimidation and applied for an Appehended Domestic Violence Order (“ADVO”) for the protection of the mother and the children.  The outcome of the criminal charges is unknown.

11. The father moved out of the family home where the children remained residing with their mother.  When interviewed by police the father said that in the course of the argument with the mother [on 3 August 2014] he said “I wish I had a gun I’d shoot the lot of us then I’d shoot myself” in the presence of the three children who were crying.  He said this because he wanted to hurt the mother and it was the only way he could do it.  He also agreed that on 5 August he had said “I wish I had a shotgun.  I’d blow your brains out” but he did not mean it and said it as he was angry and wanted to hurt the mother.  He also agreed that on 10 July he told the mother he would kill her in the course of an argument for the purpose of hurting her.

12. On 15 September 2014 a Local Court made a final ADVO protecting the mother and the three children against the father for a period of two years.  It is a broad order prohibiting the father from approaching or contacting the protected persons by any means except through the father’s lawyer or as authorised by a parenting order.

13. Following separation, the mother proposed that the father see the children every Tuesday and Thursday afternoons from 3.30pm to 6.30pm subject to the children’s wishes and every second weekend from Friday 4.00pm until Sunday 6.30pm and for telephone communication each day.  The mother also proposed that the father not drink while the children are in his care.  The parties then apparently discussed the preparation of consent orders in these terms, but the mother subsequently decided not to proceed in this way as she did not have legal representation at the time.

14. The father initiated family law proceedings on 30 October 2014.  In his application, the father does not seek any orders in relation to where the children should live.  Rather he seeks orders that the children spend time with “the party with whom they do not live” each alternate weekend from after school Friday until 7.00pm Sunday and on each Tuesday and Thursday afternoons for three hours.  He also proposes that parental responsibility be shared between himself and the mother.

15. In her Response, the mother seeks sole parental responsibility for the children, and orders that they live with her and spend time with the father each Saturday for four hours under the supervision of a private supervision service with the father being responsible for the fees associated with engaging such service.  The mother also proposes that after the father spends time with the children under these supervised orders for six months and complies with other orders (that he attend upon a psychologist for assessment in relation to mental health and anger management and comply with treatment directions), then the father’s time with the children is to be gradually increased and become unsupervised.  Ultimately after a further four months the time is to occur on each alternate weekend and one-half of the school holidays.

16. The mother filed a Notice of Risk on 15 December 2014 in relation to the father’s threats to kill her, the children and himself in the presence of the children in July and August 2014 and the use by the father of degrading language concerning the mother in the presence of the children.

17. On 16 December 2014, the matter was allocated into the Magellan protocol and an Independent Children’s Lawyer was ordered to represent the children’s interests.

18. On 21 January 2015, a Magellan Report was prepared which was released on 5 February 2015.  In that report it was noted that there had been two significant risks of harm reports received in relation to the children.  The Department also referred to records which indicate that the father was implicated in an allegation made by one of his older children, Ms F Tasker, when she was a child that he and her “Uncle G” had sexually assaulted her.  Although the allegation was substantiated and the Department were aware that the father had been charged with respect to this alleged assault the Departmental case was closed on the basis that the father’s bail conditions did not allow him to approach the child.  The view of the Department was that as the mother had sole care of the children and was seeking supervised contact for the children with their father, she is considered to be protective of the children and it was, therefore, not necessary for the Department to Intervene.

19. On 12 February 2015, interim orders were made by consent for the children to live with the mother and spend supervised time with the father at a particular contact centre at dates and times suitable to the centre and on a weekly basis each Saturday if possible.  Subsequently, it became clear that the interim orders were not able to be implemented as the Contact Centre refused to provide supervised contact due to the father’s prior history in relation to the charge for sexual assault of his daughter from his earlier marriage.

20. On 18 August 2015, the parents and children participated in the Child Responsive Program.  In the course of the Children and Parents Issues Assessment the Family Consultant reported that there were a number of concerns raised in the histories provided and in interview and that the Court may deem it appropriate to invite the Department to intervene given the additional information obtained by the Family Consultant which was not available when the Department last considered the matter.

21. The Memorandum prepared by the Family Consultant from the Children and Parents Issues Assessment raises the following matters of risk with respect to the children which led the Family Consultant to suggest that there is an “overall sense of vulnerability of all family members, living in a potentially predatory environment … arising from … “behaviour of both parents’ associates”.

Risk Factors Relating To The Father

1. The father has acknowledged to both police and the Family Consultant that he said he would shoot “the lot of them” (his wife and children) and that all three children overheard what he said and were crying.  He said he was very angry at the time but had no intention of following this through and now an Apprehended Domestic Violence Order (“ADVO”) is in place for the protection of the mother and children for two years.

2. The mother alleges in her affidavit that the father has not been physically violent in the past but has been threatening.  However, she told the Family Consultant that she and the father had a few fights before they had children and that the father threatened to punch her on two occasions and once held a knife to her.

3. In relation to the allegation of sexual assault made against the father by his now adult daughter, Ms F, both parents advised the Family Consultant that the matter did not proceed in Court.  The records from the District Court produced on subpoena indicate that the father was charged in May 1996 with one count of sexual intercourse with the child under 10 years and one attempted sexual intercourse with the child under 10 years and was committed to stand trial in July 1996.  The trial was due to commence in February 1997.  The Court file indicates that the matter was “no-billed”, that is, it did not proceed to trial.  The reasons for the matter not proceeding is unknown.

4. A person referred to as “Uncle G” was also alleged to have sexually assaulted Ms F in 2006.  When the Family Consultant discussed with the parents the possibility of organising a mutual friend supervising the father’s time with the children, the father nominated Mr G Jess but the mother did not agree to him supervising any visits.  It seems to be suggested that Mr G Jess may be “Uncle G” alleged to have sexually assaulted Ms F.

5. The father indicated to the Family Consultant that he still loves the mother and would like to reconcile.  The mother’s affidavit refers to discussions with the father in 2014 around the time of and immediately following separation when the father said he could not accept that the mother was leaving him.  In her affidavit the mother alleges that on 9 July 2015 when she and the father first discussed her intention to leave the relationship, the father said “if I ever see you with another guy I will king hit him and you” and that in the course of the heated argument on 3 August 2014, the father’s threats to shoot “all of us” included the words “if I can’t have you then no-one will”.  The Family Consultant had some concerns about how the father may react when he realises that the mother may be in a relationship now and if she re-partners in the future.

Risk Factors Relating To The Mother

1. The father told the Family Consultant that the mother had also threatened to kill him by running him over and then reversing to make sure he is dead.  The Family Consultant said that the father did not appear frightened of the mother but indicated feeling somewhat threatened by the man who had accompanied her to the Court.  The identity of this person is unknown but the mother told the Family Consultant he was a friend.

2. The father raised concerns about men that he believed the mother had exposed the children to since their separation.  One of these people is said to be the children’s sports instructor, Mr B.  The father said that Mr B regularly puts his hands down the back of girls’ sports trousers and grabs their underwear to give them a “wedgie”.  He also said that Mr B also licks the children’s faces.  The mother confirmed to the Family Consultant that Mr B does do these things but she did not appear to consider it inappropriate.

3. In the course of the proceedings on 21 September 2015, the mother through her solicitor appeared to continue to maintain that Mr B’s behaviour towards the children in the course of sports instruction was appropriate.  Through her counsel the mother appeared initially reluctant to agree to an order that she be restrained from allowing the children to come in contact with Mr B.  The mother’s counsel said:

   The mother advises that she is present at all of the sessions when the children are there with the [sports] instructor and advises that what happens in terms of the flicking of underwear is a rule at the Centre where if the children are wearing their uniforms incorrectly and their pants too low it is brought to their attention by those actions.

   The mother’s counsel also said that the mother “has independent relationship with Mr B” and she also continues to spend time with Mr B.

4. The father also told the Family Consultant that there are two other men known to both he and the mother who are allegedly on the Sex Offenders Register and who he believes the mother continues to associate with.  The mother told the Family Consultant that she does not spend time with either of these men and nor do the children.

5. I was given confusing information in Court on 21 September 2015 when I asked the father, through his counsel, to give the names of these two men.  Ultimately, they were nominated as “G Jess” brother and “Ms H’s brother”.  As stated earlier, it is not clear whether Mr G Jess himself is the same “Uncle G” who was also alleged to have been involved in the sexual assault of the father’s older child in 1996.  However, both parents seem to continue to associate with him. Mr G Jess was nominated by the father to the Family Consultant as an appropriate person to supervise the father’s time with the children.  Further, in her affidavit, the mother says that following the threatening conversation on 5 August 2014 which ultimately ended the relationship, and prior to attending the police station the mother picked up two of the children from school and took them “to [Mr G Jess] (“[G]”) residence”.  She explained in her affidavit that “[Mr G] is a good family friend.  I sent C a text in words to the following effect:  “Go to [Uncle G’s] house”.”

6. It is also common ground that the mother was sexually assaulted by her own father as a child.  She told the Family Consultant that the father, Mr Tasker was a friend of her parents and lived next door.  She said that she told the father about the abuse and also told staff at her school and was removed from her parents’ care and lived in foster care for a short time.  She told the Family Consultant that she began a relationship with Mr Tasker when she was 14 years old and later moved in with him and said she is the same age as one of the father’s sons.  She told the Family Consultant that age “does not matter” and indicated she would be supportive of her daughters if they became involved in a relationship with an older man.

7. The father also raised with the Family Consultant inappropriate behaviour by the mother which he suggests the children have copied.  He specifically referred to an incident where the mother deliberately bent over without underwear directly in front of C’s face.  D then apparently did this action to a 47 year old man and when asked why she did this she said that her mother did it to C.  The mother confirmed to the Family Consultant that she had engaged in this behaviour which she said she regretted and had told D that it was “not right”.

8. The Family Consultant also notes that the Magellan Report indicates that there have been two reports concerning sexual abuse or risk of sexual abuse in relation to C in 2006 and 2014 respectively but no details have been provided.

9. In general, the Family Consultant described both parents as quite vulnerable during interview.  She said that the mother “did not really want the children to spend time with their father but was quite suggestible and seemed easily persuaded”.

1. The Family Consultant made the following conclusion:

   The histories provided, and concerns raised during interview, tended to give an overall sense of vulnerability of all family members, living in a potentially predatory environment.  The Court may deem it appropriate to invite FaCS to intervene given the additional information obtained in relation to the mother’s vulnerability and the potentially predatory behaviour of both parents’ associates.

2. Although it was concluded in the Magellan Report written in January 2015 that the mother is protective of the children, as the Child Responsive Program Memorandum reveals, concerns in relation to risk arise in both the maternal and paternal households.  The father is also now seeking orders that would see him ultimately have overnight and unsupervised care.  The view taken by the Department as to the mother’s protective capacity may also be reconsidered in light of those additional risk factors in the mother’s home.

3. In these circumstances the Secretary is requested to intervene in the proceedings.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 30 September 2015.

Associate: 

Date:  30 September 2015