The Mother’s perspective – Family Report

The Mother’s perspective – Family Report

Proctor & Proctor [2016] FCCA 613 (23 March 2016)

The following is annotated. For full case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2016/613.html?stem=0&synonyms=0&query=family%20law%20act

The Family Report

375. A Family Report was prepared in these proceedings dated 2 June 2015.
376. A Family Report is an important piece of evidence. It is not, however, a Judgment of the Court nor unassailable. The Report and its recommendations are, appropriately, the subject of scrutiny and evidential testing. The Report is subject to the evidential considerations discussed above.
377. I propose to devote some substantial time to a discussion of the Family Report and the evidence of the Family Consultant given during cross-examination. This arises principally as substantial reliance appears to have been placed upon the Report and its recommendations by each of Mr Proctor and the Independent Children’s Lawyer.
378. It would appear that the position advanced by each, that both children live with Mr Proctor, was substantially based upon the Report’s recommendations. I can only assume that the Independent Children’s Lawyer’s “preliminary view”, that both children should live with Mr Proctor, was based upon a ready acceptance of the Family Report’s recommendations.
379. The Family Report Writer was required twice for cross-examination.
380. At the opening of the case the Independent Children’s Lawyer indicated that the Family Report Writer had been arranged to attend to give evidence first. This would appear to have principally been on the basis of the Family Report Writer’s availability rather than any consideration of the efficacy or utility of that course.
381. As a general proposition, the Court is anxious to accommodate the availability of Family Report Writers and other experts. They are busy people with multiple commitments. However, the calling of an expert, in light of the issues arising from the above discussion of evidential principles, is a matter of some importance.
382. In proceedings where there is little, if any, factual dispute between the parties then the Family Consultant being called for cross-examination at the commencement of the trial may be entirely appropriate. Indeed, this would be consistent with the section 69ZN principles.^[122]
383. In this case there are few if any agreed facts. There are contested issues as to whether the children have been “abused” by one parent or the other, whether the children have been influenced if not coerced as to their behaviour and the views expressed by them and whether there are issues of risk or safety in either household.
384. In circumstances such as those present in this case it was entirely inappropriate for the Family Consultant to be called first. This issue was raised with the parties and the Independent Children’s Lawyer before the Family Consultant was called. It was made clear to the parties and the Independent Children’s Lawyer that if factual controversy was not resolved as a consequence of cross-examination that the Family Report Writer would need to be recalled.
385. When the proceedings were adjourned on a part heard basis the Court confirmed with the parties and the Independent Children’s Lawyer that the Family Consultant would be recalled and would be recalled at the conclusion of all evidence and cross-examination.
386. I propose to set out significant portions of the Family Report as they have had great bearing upon the position advanced by the parties and the Independent Children’s Lawyer. I also propose to do so as a detailed consideration of that arising from interviews with the parties, the adult child Ms P, the children the subject of the proceedings and the Family Consultant’s consideration and discussion of material produced on subpoena is of fundamental importance in examining the recommendations that were made by the Family Consultant.
387. From the outset I make clear that I do not accept the recommendations of the Family Consultant nor the submissions put by the Independent Children’s Lawyer, at least in part, in reliance thereupon.
388. The Family Consultant met not only with the adult child Ms P but also with the adult child Mr R. Ms P gave evidence by Affidavit and was cross-examined. Mr R did not give evidence. In those circumstances I do not propose to place any weight upon that which was stated to the Family Report Writer by Mr R other than to observe that:
     1. Mr R’s attitudes towards each of his parents is entirely consistent with those of Ms P, X and Y in that there is little, if any, criticism by Mr R of his father and no ability to make any concession of a positive nature with respect to his mother;
     2. Mr R is reported by the Family Report Writer as stating that, “in regards to the allegations of family violence between his parents, Mr R alleged that both parents would “equally hit one another, equally yell at one another””.^[123]
389. On the first occasion that the Family Report writer attended for cross-examination she was briefly cross-examined by the Independent Children’s Lawyer and by Counsel for Ms Proctor. Mr Proctor had no questions for the Report Writer. This might be reflective of the reliance placed by Mr Proctor upon the Report and its recommendations.
390. When the Family Report Writer was re-called on the fourth day of hearing the Family Report Writer was cross-examined extensively by Counsel for Ms Proctor and briefly by the Independent Children’s Lawyer. Mr Proctor also chose to cross-examine the Family Report Writer on this occasion.
391. In dealing with the Report, I propose to follow the chronology of the Report itself and address cross-examination with respect to those issues together with the findings of fact made by me with respect to those issues. It is hoped that by doing so the significant factual and evidential difficulties that I apprehend with respect to that relied upon by the Report Writer will be made clear.
392. The Family Report Writer, in discussing her interview with Ms Proctor, reports of Ms Proctor’s perception of her relationship with Y:
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     Ms Proctor said that Y was her “princess”. She stated that Y was “very good” and that they talked to one another. She said that Y was not rude, and although she had been “brainwashed” she was strong. Ms Proctor said that Y told her “everything”.^[124]

393. This description by Ms Proctor of her relationship with Y was not challenged. This description by Ms Proctor of her relationship with Y is also consistent with the evidence of Mr Proctor and each of the adult children.^[125] The closeness of the relationship between Ms Proctor and Y as described by Ms Proctor was also consistent with that observed by the Family Report Writer in observations.
394. This became an issue of some significance particularly when the matter resumed on a part heard basis after a break of only three months. By the resumption of the hearing it was apparent, following concession by Mr Proctor during his cross-examination, that during the adjourned period Y had not attended any period of weekend time with the mother (although she had attended a period of school holiday time (with her brother X) as to which there would appear to have been no complaint).
395. By the resumption of the hearing March 2016, both Mr Proctor and Ms P suggested that Y no longer wished to spend any time with her mother. Counsel for the Independent Children’s Lawyer suggested that this was consistent with Y’s statements to the Independent Children’s Lawyer when they had met with Y shortly before the resumed hearing. It is noteworthy that nothing was offered in the evidence to suggest a basis for the child’s suggested change of view (which views I will discuss when considering the relevant portion of the Family Report).
396. In the Report of Ms Proctor’s comments regarding X, there was what might be described as a degree of resignation to the damage done not only to the child’s relationship with his mother but to the child himself. The Family Report Writer sets out the following description by the mother:
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     Ms Proctor said, in relation to X, “poor boy”, “

     [his]

     personality is finished”, and “his papa is always right”. She said that X was nice to her when he wanted something, but then all of the sudden he would try to start a fight with her. Ms Proctor stated that Mr Proctor had told X to come and spend her money and so he always demanded items be bought for him, or that they go out and socialise. Ms Proctor said that, at these times, X was “arrogant” and “rude”.^[126]

397. The above would appear to be a position inherently adopted by the Independent Children’s Lawyer whose submissions might well be described as being prefaced upon an acceptance that “the damage has been done” and that it is thus too late to affect any change, such as to change their primary place of residence, for either child.
398. The impact of a lifetime of exposure to the dysfunctional environment in which these children lived whilst their parents were under the one roof and to which, I am satisfied, these children have continued to be exposed since separation, including through the father’s campaign of denigration of the mother and active undermining of her relationship with the children, is acknowledged, in some small part, by Ms Proctor and as reported in the following portion of the Report:
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     Ms Proctor reported that X had been affected by witnessing the parental conflict and family violence. She stated that she had witnessed him calling Y a “bitch”, and threatening to hit her whilst they were visiting. Ms Proctor said that while she had asked him where he got that behaviour from, she knew that it was from Mr Proctor.^[127]

399. The behaviours that are reported by Ms Proctor of X are remarkably consistent with the behaviours that Ms Proctor complains she has experienced at the hands of Mr Proctor. They are also entirely consistent with the behaviours demonstrated by the adult children Ms P and Mr R and as depicted in the video produced by Mr Proctor and subsequently destroyed by him.
400. To the extent that the above behaviours are described by Ms Proctor, I accept:
     1. Ms Proctor’s evidence subject, however, to also accepting her evidence that X’s behaviour is not always as negative and destructive and that, particularly during block periods of time, when away from the father’s care for longer periods, that X’s behaviour towards his mother and younger sibling can be warm and affectionate;
     2. That X’s behaviour is, in all probability, a learned behaviour, demonstrated by Mr Proctor in his actions towards Ms Proctor whilst the parties lived under the one roof and replicated by X in his behaviour and, in all probability, also encouraged by Mr Proctor at least as regards his mother.
401. I am concerned that X’s behaviour as described is potentially impeding if not destructive of his relationship with his mother and also has the potential to impact upon the relationship between Ms Proctor and Y if both children are present at the same time.
402. To the extent that Y is described by Ms Proctor, at the time of the Family Report interviews, as having a warmth of relationship with her mother (a position confirmed by Y in her own interview) I am concerned that ongoing behaviour by X of the nature described by Ms Proctor would have the potential to undermine Ms Proctor’s relationship with Y.
403. I am not satisfied that X’s behaviour towards his mother has its genesis in or arises from any behaviour by Ms Proctor towards X, including but not limited to, his acting out or responding to past “abusive” behaviour by Ms Proctor towards him. There is no evidence which I can accept or place weight upon, which demonstrates to the Court or would safely permit a finding that X has been ill treated by Ms Proctor.
404. That this finding would be made was made clear to the Family Report Writer when they were recalled at the conclusion of the evidence of the parties. This has particular significance, as will become apparent from a consideration of the balance of the Report, in light of the Family Report Writers acceptance that it was “more probable” that Ms Proctor has been abusive of all four children.^[128]
405. In the absence of evidence that would support a finding that abuse had, in fact, occurred, greater enquiry might have been directed to explore the basis upon which the children and, in particular, X, would express views of such force and, as described by the Family Report Writer, such “polarised” views of the parents.^[129] The absence of exploration of such alternative hypotheses by either the Family Report Writer or Independent Children’s Lawyer is a deficiency in the Family Report Writer’s evidence and a concerning failure to evaluate the available evidence on the part of the Independent Children’s Lawyer.
406. Ms Proctor discussed with the Family Report Writer her interaction with the two children when they spent time with her and she described the following, “Ms Proctor said that when the children visited her they usually went on many outings such as to the movies, the park with family friends or the beach”.^[130]
407. It would appear that Ms Proctor was specifically questioned as to issues of discipline and physical discipline and Ms Proctor’s response was, “Ms Proctor said that she did not use physical disciple (sic) with the children”.^[131]
408. The issue of family violence was canvassed with Ms Proctor in the following passage reporting her, “Ms Proctor alleged a history of physical, emotional and psychological abuse by Mr Proctor to her”.^[132]
409. And:
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     Ms Proctor said that the police had been called on many occasions to their home, relating to this violence. She stated that both she and Mr Proctor, and Ms P, had telephoned the police on different occasions. Ms Proctor stated that there had been four Apprehended Violence Order’s (AVO) between her and Mr Proctor. She stated that there had also been one alleged breach by her. She stated that two of the AVO’s protected her and two Mr Proctor protected from her. Ms Proctor stated that she had only acted in self-defence, or Mr Proctor had made false allegations against her, in the three incidences where she was found to be the perpetrator of violence by the Police

     .

     ^[133]

410. Whilst it is not the place of the Family Report Writer to forensically examine that which is stated by the parties (or that which is known to the Family Report Writer from other sources such as the parties Affidavits or subpoenaed material) I am concerned that the Family Report Writer would appear to have discounted Ms Proctor’s complaints of having been the victim of family violence.
411. Those allegations are not addressed with any particularity by the Family Report Writer and it would seem, from the acceptance that Ms Proctor has been “the abuser” at least towards the children, that Ms Proctor’s complaints of victimology have been discounted if not dismissed.
412. The findings of fact that the Court intended to make, having heard all of the evidence of the parties, were put to the Family Consultant upon their recall for cross-examination.
413. In cross-examination by Counsel for Ms Proctor the Family Report Writer conceded that it was unclear from the evidence which of the parties, if not both, had perpetrated family violence. It was conceded by the Family Report Writer, however, that the children’s exposure to substantial family violence might well explain elements of, in particular, X’s behaviour both towards Ms Proctor and alignment with his father.
414. The above proposition was particularly accepted by the Family Report Writer upon a description of that depicted in the video Exhibit ICL2. The Family Report Writer conceded that if the children have been routinely exposed to such behaviour, with the father and adult children as aggressors towards the mother, that the children might protectively gravitate towards their father.
415. Importantly, the Family Report Writer also conceded that their exposure to such an environment, significant family violence and conflict whilst the parties resided under the one roof and the father’s ongoing denigration and undermining of the mother’s relationship with the children post separation, would cause them significant difficulties in adolescence and adulthood and that the children’s behaviour, especially that of X, might be suggestive of those impacts beginning to manifest themselves.
416. The Family Report Writer conceded that if such undermining behaviours on the part of Mr Proctor (as regards the children’s relationship with their mother) were ongoing that this would represent a danger to the children’s emotional and mental health, although those dangers needed to be weighed up against “the risks” for the children of removing them from their present placement, separating them from their siblings as well as practical considerations such as “voting with their feet”.
417. It was conceded that such ongoing undermining of the mother’s relationship and exposure to the father’s behaviours in that regard might well assist in explaining, absent any other evidence to suggest a basis for it, Y’s suggested change of view particularly as the Family Report Writer reaffirmed “last time [at Family Report interviews] Y was open to a relationship”.
418. The proposition was put directly to the Family Report Writer that if one accepted Ms Proctor’s evidence as to family violence, which evidence the Court did accept, that there would be benefit to both children of being removed from the father’s care. That proposition was accepted by the Family Report Writer subject to the caveat that, “with X, given his age, my thoughts are that it would be so if he was more open to spending time with his mother and didn’t believe he’d been abused then yes but that is also the separation of siblings”.
419. It was put to the Family Report Writer that it might be better to move both children away from the influence of their father and that, in any event, there might be benefit for Y of doing so. The Family Consultant opined that a move from the father’s home would likely work better for Y, she being younger and not yet holding views of such strength and firmness as X (although there was real possibility that X’s views reflected an entirely false and manufactured reality), and that if such a move occurred Ms Proctor’s proposal for a moratorium upon communication between Y and her father (and members of the household) for some time would be worthwhile.
420. During cross-examination the Family Consultant also conceded that Y’s apparent change of heart having, in the space of three months, gone from desiring a relationship with her mother to now allegedly rejecting such a relationship, might well reflect that further pressure has been brought to bear upon her. I am satisfied that on the accepted evidence this is the only possible or plausible explanation.
421. Issue is raised in the evidence, principally by Mr Proctor, that Ms Proctor suffers from some form of mental illness which is explanatory of her past alleged behaviour and which mental illness continues untreated.
422. There is no issue that Ms Proctor has consulted with a psychiatrist in the past. There is no issue on the evidence that Ms Proctor received treatment for what is described by her treating psychiatrist as “reactive depression”.
423. The Family Report Writer reports of Ms Proctor that, “Ms Proctor denied having any current mental health condition”.^[134]
424. I accept that this is so. There is no evidence to the contrary. The evidence that is available from the psychiatrist with whom Ms Proctor has consulted from time to time would corroborate Ms Proctor’s position.