Recommendations not accepted

Recommendations not accepted

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

587. For the reasons set out in the above discussion of evidence I do not accept that a finding could safely be made that Ms Proctor has engaged in physical or emotional abuse of the children at any time.
588. The Court’s findings of fact are at odds with the premise upon which the Family Report Writer has proceeded. To the extent that the Family Report thus makes recommendations based upon a probability that abuse has occurred, those recommendations are rejected.
589. The Family Report Writer comments upon the stridency of X’s views in the following paragraph:
     <li “=””>

     The polarisation of X’s views meant that consideration was initially given to Mr Proctor attempting to alienate the children from Ms Proctor by “brainwashing” the children to falsify the abuse allegations. However, from the information available to this assessment, it is considered more likely that Ms Proctor did physically, emotionally and psychologically abuse all four of her children, with the majority of the abuse being directed at X and Ms P. It is considered likely that Mr Proctor has also not been supportive of the children’s relationship with Ms Proctor. This is likely to have further exacerbated any relationship issues relating to Ms Proctor’s abuse of the children.^[180]

590. As is set out above, the Family Report Writer would appear, at least to some extent, to have sought to become a tribunal of fact. In doing so the Family Report Writer would appear to have led themselves into error by discounting, if not disregarding, one possible explanation for the stridency of X’s views in preference to another explanation. The factual premise upon which the Report Writer proceeded is not ultimately found plausible by the Court.
591. What I am left with is the acceptance by the Family Report Writer, consistent with the Court’s findings, that Mr Proctor has, through his words, deeds and actions, influenced the children in their views and, I am satisfied, “recollections” or “memories”. I am satisfied that Mr Proctor continues in those behaviours.
592. This finding sits comfortably with that which is advanced by Y. It also provides plausible explanation for the suggested change in view of Y occurring between the release of the Family Report and the present. No alternate explanation is advanced for the change of view.
593. The Family Report Writer accurately describes a history of family violence between the parties and then goes on to comment upon the likely impact upon these children of exposure to family violence in the following paragraphs:
     <li “=””>

     In relation to the issue of family violence, there has been a history of reports to Police by Ms Proctor and Mr Proctor regarding incidents of verbal and physical abuse.^[181]

594. And:
     <li “=””>

     Children that are exposed to conflict, family violence between their parents or violence directed at them are likely to have poorer outcomes in regards to their psychological and physical health. They often struggle to perform well educationally. Their peer, and intimate relationships later in life, will often suffer….The children, however, have continued to be to be

     (sic)

     exposed to the parental conflict with each parent making unilateral decisions regarding the children’s care and education. The children therefore continue to be at risk for the poor outcomes described above.^[182]

595. One aspect of the children’s exposure to disadvantageous behaviour not specifically addressed in the Report is the impact upon the children of Mr Proctor (and Ms P’s) ongoing negativity towards Ms Proctor and her relationship with the children.
596. During her cross-examination the Family Report Writer, in response to questions by Mr Proctor, opined that Mr Proctor had not, during the Family Report interviews, demonstrated any real insight as to the impact of his negative influence towards the mother on the children and their relationship with her. I accept that comment as accurate both as to that reported in the Family Report and as to Mr Proctor’s insight generally.
597. The Family Report Writer was also clear that if the Court felt that there was such a significant degree of influence by Mr Proctor upon the children and their relationship with the mother (such that the relationship has not been practised since January 2016) that it may be in the children’s best interests to live with their mother.
598. This was tempered, as regards X, with the concern that X may not remain in the mother’s care and may run away^[183] or “vote with his feet”. Similarly, concern was raised that X’s behaviour and now entrenched attitudes towards the mother might be counter-productive to X’s relationship with his mother (if forcibly placed with her) or may impact negatively upon the mother’s relationship with Y if both were placed with her.
599. With some real regret I accept that this caveat has validity. I do not go so far as to accept the submission of the Independent Children’s Lawyer, a submission to the effect that “the damage is done” and such that in the circumstances neither child should be addressed.
600. I accept that there is real validity to the concerns expressed by the Family Consultant as to the potential impact of X’s obstreperous and obstructive behaviour in his relationship with the mother upon the mother’s relationship with Y.
601. To the extent that the Family Consultant raised concerns that, “There was very little information available to this assessment regarding Ms Proctor’s mental health”^[184] I, again, make clear, as it should be apparent from the above discussion of evidence, that I am not concerned that the mother suffers from or is afflicted by any mental health condition that would impact upon her capacity to care for the children or maintain a relationship with them.
602. Whilst the Family Consultant proceeded on the basis that there may well be concern as to unacceptable risk to the children in the mother’s care (which concern I do not share) no such concern was raised in relation to the father, the Family Consultant stating:
     <li “=””>

     There is no information available to this assessment to suggest that the children are at unacceptable risk of harm in his care….It has also been considered that neither child has a desire to reside with Ms Proctor….It appears from both Y and Ms P’s interviews that Ms P has played a significant maternal role, in her younger sibling’s lives.^[185]

603. The Court holds greater concern as to the “risk” posed to the emotional health of these children if one or both of them continue to reside within Mr Proctor’s household. I accept that within the household Ms P plays a “significant maternal role”. Indeed, she would appear to provide the majority of care to her younger siblings.
604. Whilst Ms P provides significant care to these children it would appear that her relationship with the children is infected by the same negative attitudes towards the children’s mother as are Mr Proctor’s. On that basis I have real concern as to the health or appropriateness of the relationship between these children and their elder sibling. Whilstsoever Mr Proctor or Ms P have the care of these children, or to a lesser extent are in contact or communication with them, these children will not feel free to and will not be able to practice a relationship with their mother.
605. The relationship between these children and their mother, particularly as between Y and the mother, has benefit to these children. The mother cares for these children, is able to meet their needs and has a positive contribution to make to their future.
606. Ms Proctor does not actively undermine or discourage the children’s relationship with their father^[186] and, on that basis and in contradistinction to the father and Ms P’s actions, there is some preference for that placement.^[187]
607. During the course of the hearing I had made clear to both parties and the Independent Children’s Lawyer, consistent with my obligations pursuant to the High Court’s decision in U & U,^[188] that I was considering a position outside of the “parameters” of the parties Applications, namely, that the children might be “split” and live separately from each other. Consideration of this position was also canvassed with the Family Report Writer.
608. Within the Family Report the following statement is made, “In relation to the time between the children and Ms Proctor, it is considered that the two children’s needs should be dealt with separately”.^[189]
609. I accept that the possibility of a separate consideration of the children’s needs would also apply to their primary place of residence.
610. The Family Report Writer had concluded with respect to Y that, “Y has expressed a desire to continue to spend time with Ms Proctor. Mr Proctor has stated that he would support Y spending time with Ms Proctor”.^[190]
611. Accepting the accuracy of the Family Consultant’s assessment of Y’s views it is concerning that Y has ceased, save for one period of time during the last Christmas school holidays, to practice any relationship with her mother since the hearing of these proceedings commenced.
612. I am satisfied that the cessation of time between Y and her mother is entirely inconsistent with Mr Proctor’s statement that he would support Y spending time with her mother. I am satisfied that such is the influence of Mr Proctor over these children and each of them that if he, in fact, supported the relationship that the relationship would occur. Accordingly, that the relationship is not occurring sits contrary to Mr Proctor’s expressed desire and such that I do not accept that Mr Proctor desires a relationship between these children and their mother.
613. The evidence taken in its totality satisfies me that the only way by which these children or either of them will be able to have a relationship with their mother is to leave the care of their father (being also the primary care of their elder sibling Ms P). To that end there may well be “different considerations” that apply to each child.
614. The Family Report Writer then offers the following comment as to Orders that might be made to facilitate Y’s relationship with the mother:
     <li “=””>

     Given the allegations of abuse by Ms Proctor and due to Y’s age, it may be more beneficial for the time to be as per Y’s wishes. This would allow Y to choose not to attend time with Ms Proctor if she began to direct abuse towards her. If Y wanted to visit Ms Proctor less frequently due to other weekend activities, such as sport taking precedence this might also be beneficial. However, there is concern that Mr Proctor may abuse this order and use it to not support Y spending time with Ms Proctor. Ms Proctor may also abuse this

     (sic)

     orders to suggest that Y wanted to stay with her, as she did in January 2015. In this case an order specifying the time Y spend with Ms Proctor may be of benefit. It is considered that this issue is a matter for the Court.^[191]

615. It is to be noted that this discussion is prefaced upon an acceptance or inferred acceptance that abuse allegedly perpetrated by Ms Proctor upon one or more of the four children of the relationship has occurred. Those are not accepted by the Court. The evidence on that issue falls so far short of probative, persuasive evidence that no finding can be made.
616. Whilst it might be open to submit that a finding cannot be positively made that no abuse has occurred, I am conscious that there must be some valid, evidential basis for concern. I cannot be satisfied that there is such an evidential basis especially with respect to Y. There is no allegation of her abuse, save by exposure to family violence and conflict, in which behaviour both parents have played a role, although Mr Proctor would appear to have played and I accept has played the dominant role.
617. The Independent Children’s Lawyer submits that there is a “possibility” that abuse complained of by Ms P might arise with respect to Y as she ages. To accept that submission, I would need to be satisfied that there was a basis upon which to accept as plausible the evidence of Ms P. As indicated above I have significant difficulty in accepting Ms P’s evidence and I do not accept her evidence.
618. To the extent that substantial weight is placed by the Family Report Writer upon the importance of the relationship between Ms P and Y, I am conscious that the relationship between Ms P^[192] and Y is, as discussed above, infected by the same toxicity as the relationship between Y and Mr Proctor. That is so at least as regards Ms P’s attitudes towards the mother and Y’s relationship with her mother, (an entirely appropriate and healthy relationship).
619. To the extent that the Family Report Writer has accepted that Mr Proctor will or may support the relationship between Y and her mother I reject the opinion or recommendation. I have no confidence that Mr Proctor has any capacity to support the relationship between either of these children and their mother. I am satisfied on the evidence, taken in its entirety, that Mr Proctor has demonstrated no insight into the importance of doing so nor has he, at any time, done so.
620. I accept that the effect of making an Order for the children to live with Mr Proctor and to spend time with their mother in accordance with their wishes would be to sever any relationship between the children and their mother. The relationship has not been and will not be supported by either Mr Proctor or the children’s eldest sibling Ms P. In those circumstances, especially as regards Y, I am not satisfied that it would be appropriate to make such an Order.
621. At the conclusion of their evaluation the Family Report Writer opined, “Given the allegations of ongoing conflict and the lack of communication reported by each party, shared parental responsibility is contra-indicated”.^[193]
622. I accept this recommendation by the Family Consultant. The parties have demonstrated that they have no capacity to cooperate or resolve issues between them. They have no capacity to communicate and do not do so.
623. In light of the allegations of family violence that each party raises and in accordance with the discussion of those allegations above, I am not satisfied that it would be appropriate to impose the obligations which would arise as a consequence of section 65DAC of the Act upon these parent’s consequent upon the making of an Order for equal shared parental responsibility.
624. As it is clear that these parents cannot cooperate in any fashion and that to attempt to have them do so would be disadvantageous to each of them and to the children, I am not satisfied that an Order for joint and several parental responsibility pursuant to section 61C of the Act would be appropriate either.
625. For reasons that I will expand upon these children, whether living together or separately, are unlikely to spend time with the parent with whom they do not live. The history of these parties and their ability to support and cooperatively achieve a relationship between each of these children and the other parent, as demonstrated by the evidence, makes clear to me that no other outcome is achievable than for each child to live with a parent and for that parent to make decisions for the child.
626. I do not make the above findings with any joy. As I had remarked to the parties and the Independent Children’s Lawyer before submissions commenced, it would appear that these parties have determined that the greatest possible disadvantage will be inflicted upon their children. The “rock and a hard place” that these parties have created for the Court is the realisation that the children, whether together or separately, must live with one parent and will then not likely have any form of relationship or communication with the other.
627. At the conclusion of the Family Report recommendations were made in the following terms:
     <li “=””>

     RECOMMENDATIONS ^[194]

     • It is recommended that Mr Proctor hold sole parental responsibility for X and Y.
     • It is recommended that X and Y live with Mr Proctor.
     • It is recommended that X spend time with Ms Proctor as per his wishes.
     • It is recommended that Y spend time with Ms Proctor on alternate weekends from Friday to Monday. It is recommended that changeovers occur as per the interim orders.
     • It is recommended that Y be linked in with a counsellor at the Anchor program to support her spending time with Ms Proctor.
     • It is recommended that Mr Proctor seek support to address X’s speech impediment as soon as possible.
628. As would be apparent from the above and as I will expand upon in a consideration of the legislative pathway, I do not accept the above recommendations, save and except the recommendation that sole parental responsibility should be allocated to the parent with whom the children or either child is living.