Abuse and Father’s perspective

Abuse and Father’s perspective

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

425. The Family Report then turns to the Family Report Writer’s interview with Mr Proctor. It commences with the following statement:
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     Mr Proctor said that he believed the children should spend time with Ms Proctor as per their wishes, due to Ms Proctor’s abuse of them. Mr Proctor stated that he supported Y to attend on alternate weekends….Mr Proctor stated that X did not want to visit Ms Proctor at all. He said that he supported this decision, but that he did not want to deprive X of “motherly love”

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     ^[135]

426. I have a number of difficulties with genuineness of the position that Mr Proctor advanced to the Family Report Writer. Mr Proctor’s evidence is entirely contrary to that which he stated to the Family Report Writer. There is nothing from Mr Proctor’s evidence that gives me any confidence that he has at any time, let alone at the present, supported the children’s relationship with Ms Proctor.
427. Mr Proctor’s evidence has vacillated between his assertion of support for the children’s relationship with Ms Proctor (although his evidence has been absent any clear indication of that which he has done to seek to support the relationship) and his assertion that the children require protection from harm and thus he is not able to support the relationship.
428. What is abundantly clear from the evidence is that any action which Mr Proctor might suggest that he has taken to support the relationship has been wholly and entirely ineffective. At the time that the hearing resumed on a part heard basis the children had spent no time with their mother for three months and Mr Proctor was unable to offer any evidence as to steps that he had or might have taken to remedy this situation.
429. The evidence, taken as a whole, would lend some support to a finding, which I make, that Mr Proctor has not only failed to support the relationship but has taken active steps to interfere with and undermine it.
430. In discussing Ms Proctor’s care of the children, Mr Proctor is reported as follows:
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     Ms Proctor

     (sic)

     stated that he did not support the children living with Ms Proctor as she proposed. He stated that Ms Proctor had neglected the children’s care whilst she lived with them. He stated that “Ms P was a second mother

     [to them]

     ”. Mr Proctor questioned Ms Proctor’s current ability to keep the children healthy whilst in her care. He said that X had caught chickenpox from Ms Proctor. He also stated that Y had come home, from Ms Proctor’s with head lice on three occasions. Mr Proctor also stated that Ms Proctor exposed the children to “demonic and cult rituals”, under the guise of her (omitted) faith. He stated that Ms Proctor believed in using traditional treatments for health conditions rather than Western medicine. Mr Proctor said that he believed some of the traditional treatments were dangerous

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     ^[136]

431. A number of observations can be made with respect to Mr Proctor’s comments above.
432. Firstly, Mr Proctor’s assertion that the now adult child Ms P was a “second mother” to the children whilst the parties resided under the one roof and that Ms Proctor neglected the children’s care whilst the parties continued to live under the one roof is, at best, curious. Mr Proctor’s evidence, beyond broad assertion, is absent any real suggestion of any role that he has played in the children’s care other than to assist them, from time to time, with their homework and to have taken them to a number of counsellors (the purpose of which would appear to have been to have such counsellors record statements rather than provide therapeutic assistance if, in fact, therapeutic assistance was required).
433. Secondly, Mr Proctor’s evidence, or perhaps the absence of it, combined with Ms P’s evidence and statements to the Family Report Writer would suggest that the “parenting” of these two children, since April 2014 when the parties physically separated, has been largely undertaken by and delegated to Ms P. Mr Proctor’s role in the day to day care of the children would appear to be minimal if not tangential.
434. As I have indicated above, I do not accept Ms P as an accurate historian or witness of truth. Whilst I accept that Ms P has undertaken the preponderance of care for these children post separation, I do not accept that this was so prior to the physical separation of the parties. Indeed, it is curious that the video produced by Mr Proctor (Exhibit ICL2) commences with Ms Proctor in the kitchen cooking.
435. Thirdly, Mr Proctor’s complaints regarding Ms Proctor’s care of the children are far from significant or valid. Mr Proctor complains that the mother caused X to “get” chickenpox^[137] and allowed Y to “get” head lice. These somewhat trivial health issues could not be taken as a substantial complaint as to Ms Proctor’s competence as a parent.
436. Fourthly, Mr Proctor’s complaints that Ms Proctor has exposed the children to “rituals and traditional practices” is both absent of any support in the evidence relied upon by Mr Proctor and somewhat curious in light of his complaints that the Court and the various Court and government agency processes which have “interfered” in the family are examples of “cultural imperialism”.
437. There is no evidence before the Court to suggest a deficiency in Ms Proctor’s day to day parenting. Indeed, the preponderance of evidence would suggest that:
     1. Ms Proctor was far more involved in day-to-day parenting of these children than Mr Proctor and that this continued until April, 2014;
     2. In Mr Proctor’s household at present Ms P would appear to be far more involved in day-to-day parenting of these children than Mr Proctor; and
     100. Ms Proctor’s parenting of the children, for the periods that they have spent in her care since August 2014, has been entirely adequate and satisfactory. Indeed, the evidence (including prior statements to the Family Consultant which will be discussed in due course) would suggest that Ms Proctor meets the children’s needs well, has not exposed them to risk or disadvantage and has, in fact, engaged them in stimulating and engaging activities (contrary to the criticisms that are raised by Mr Proctor, the adult children and X).
438. The Family Report then sets out the following with respect to Mr Proctor:
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     He also stated that X was very sensitive to the family conflict and this was affecting his progress at school. Mr Proctor said that Y was going well at school. In regards to the children attending school late, Mr Proctor reported that he dropped the children off on time. He suggested the children may not be going to class when they were supposed to, but stated that this was not his fault

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     ^[138]

439. I accept Mr Proctor’s statement that X has been affected by exposure to family conflict. Whilst the context in which Mr Proctor makes this statement is as a criticism of Ms Proctor, I accept it as correct as a general proposition.
440. I am satisfied that the evidence supports a finding that Mr Proctor has continued to expose these children to conflict since the physical separation of these parents, including through the telling evidence disclosed in the material produced by the Department of Family and Community Services and tendered into evidence. The actions of Mr Proctor during changeover 9 January, 2015 are perhaps the clearest evidence that the Court has of that to which these children have been exposed since separation and that to which Mr Proctor continues to expose them.
441. In relation to the children’s lateness to school it would appear, from Ms P’s evidence and that which she has related to the Family Report Writer, that she attends to the vast majority of the children’s delivery to and from school.
442. During his cross-examination of Ms P, Mr Proctor sought to suggest that he and Ms P shared the children’s transport roughly equally and that this arose only due to a preference by the children to travel in Ms P’s car rather than Mr Proctor’s. I do not accept that suggestion. The weight of evidence would suggest that Ms P is, in fact, the “primary parent” to these children at this time and since April, 2014.
443. This finding has some real significance as Ms P is neither a “parent” nor an appropriate carer for these children. Ms P was clear in her distain for her mother. Ms P was clear that she does not see benefit to these minor children of maintaining any relationship with their mother and that she will not support it.
444. It was clear from Ms P’s evidence that she will not only share her negative view of the mother with these children but will project and instil those views in these children. Ms P’s attitude towards Ms Proctor is entirely consistent with (if not aligned with) Mr Proctor’s.
445. When asked to comment upon that which Ms Proctor might offer these children, the Family Report records the following:
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     Mr Proctor could not identify anything Ms Proctor could offer the children. He stated that he offered the children “everything under the sun”. He said that “I am the best father on the planet”. Mr Proctor stated that he can be strict with his children, but that he shares the truth and knowledge with them. He stated that he had brought his children up with good values and cultural knowledge. He said that he had never deserted or harmed his children, and that he was determined to keep them together….Mr Proctor stated that the system penalised him as an (nationality omitted) male by putting him in the category of a “violent male”. He said that, as a result, he was a “victim of the system”

     .

     ^[139]

446. A number of matters might be observed from this passage.
447. Mr Proctor is unable to identify any positives offered to these children by Ms Proctor. This is in sharp contradistinction to his somewhat inflated description of his own parenting as “the best father in the world”. For a variety of reasons touched upon in the discussion of evidence above I do not accept either proposition.
448. To the extent that Mr Proctor suggests that he shares “truth and knowledge” with the children I accept that Mr Proctor does, indeed, involve these children, at times entirely inappropriately, in the making of decisions and in the sharing of information based on his views and his interpretation of reality. The video, Exhibit ICL2 depicts, for example, Mr Proctor calling the adult children to join his attacks on Ms Proctor as well as his reference to “…all the kids are here, let’s discuss it”.
449. I am satisfied, having regard to the totality of the evidence, that the extent to which Mr Proctor involves the children in a discussion of adult issues and inappropriate topics is disadvantageous to them.
450. To the extent that Mr Proctor refers to sharing “knowledge” with the children I am satisfied that this is partially accurate. However, the “knowledge” that Mr Proctor shares with the children is very much his version of reality and is shared by him with the children for purposes other than their benefit.
451. Principally, Mr Proctor shares “knowledge” with the children to influence the children and to enlist the children to his cause. This includes Mr Proctor’s discussions, for example, at the contact change over 9 January 2015, describing Ms Proctor as “the enemy” and “she is not your mother”.
452. I am satisfied that Mr Proctor’s suggestion that he has brought the children up with “good morals” and that he has never “harmed or abandoned” the children are intended to infer criticism of Ms Proctor (i.e. that she has not demonstrated good morals nor passed good morals on to the children and that she has harmed and abandoned the children).
453. To the extent that Mr Proctor has sought to create for these children a false view of reality, such as an entirely negative view of their mother or to encourage the children, as the evidence of the change over 9 January 2015 makes clear, to spit at people, I simply do not accept the positive assertion made by Mr Proctor regarding his parenting. Mr Proctor’s parenting has, with respect to those issues, been poor and inappropriate.
454. Finally, Mr Proctor’s comments as reported (and Mr Proctor did not seek to challenge the Family Report Writer that he had been misrepresented) continue his claim that he has been “a victim” of the various systems. I reject those complaints entirely. When Mr Proctor has been charged by the Police it has been on the basis of his behaviour as to which he lacks insight and continues to lack insight.
455. The criticism that Mr Proctor lacks insight extends beyond the above issue. Mr Proctor’s behaviour, particularly as regards the children’s relationship with their mother, is disadvantageous to these children. Mr Proctor cannot see that this is so.
456. In describing his relationship with each of the children Mr Proctor is reported as follows:
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     Mr Proctor reported that his relationship with X was “good, too good”. He said that he was worried X would not let him go. He stated that it was the same for Y, that she “loved

     [him]

     to death”. Mr Proctor said that his children fought over him.^[140]

457. The relationship that the children enjoy with their father, in light of Mr Proctor’s behaviour towards them, the conflict that he (and Ms Proctor) has exposed them to and Mr Proctor’s attitude towards and actions with respect to the children’s relationship with their mother, does not impress upon me that the relationship between he and the children is “good”.
458. To some extent the relationship between the children and their father might be better described as “unhealthy”. The children would appear to be dominated as to their attitudes and thinking by their father as well as by their elder sister Ms P. The children express views and opinions that would not appear to be their own. The children would appear to form views of reality that are false and which substantially, if not completely, mirror their father’s views.
459. In discussing communication between the parties Mr Proctor is quoted by the Report Writer as follows:
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     Mr Proctor said that there was no current communication between him and Ms Proctor. He stated that he sent her text messages and telephoned her regarding issues for the children, but she did not respond.^[141]

460. That reported of Mr Proctor in this paragraph, noting that Mr Proctor did not challenge the Family Report Writer as to the accuracy of their reporting, is contrary to Mr Proctor’s evidence. I accept, in any event, that there is no realistic prospect of communication between these parties at any time in the foreseeable future.
461. Both parties have engaged in family counselling services as ordered by the Court, together with, at least in the case of Ms Proctor, various other services. Change or improvement in communication has not been achieved and I am satisfied that there is nothing further which could be done which might improve communication between these parents.
462. Mr Proctor was asked to comment upon Ms Proctor’s current relationship with the children. The following is reported by the Family Report:
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     In regards to encouraging the relationship between Ms Proctor and the children, Mr Proctor said he initially could not do this. He stated that this was due to Ms Proctor’s abuse towards the children. When asked to clarify this issue further, he stated “no

     [this is]

     not true, I do encourage

     [the relationship]

     ”

     .

     Mr Proctor stated that because Ms Proctor was their mother they needed to have a relationship with her. He stated that he told the children if he died today they would have to go to their mother. He stated that was the reality of it, “like it or not”. Mr Proctor denied that he had “brainwashed” the children as alleged by Ms Proctor. He said, that he thought Ms Proctor had been “brainwashed” by the (omitted) Domestic Violence Team and her Lawyer.^[142]

463. Having regard to Mr Proctor’s evidence I do not accept that Mr Proctor genuinely believes that which he asserts to the Report Writer, namely, that “… Because Ms Proctor was their mother they needed to have a relationship with her”.
464. It is curious that Mr Proctor gives, as the only example of support of the children’s relationship with their mother, his suggestion that the children are told that upon his demise that they would “need” to live with their mother whether they like it or not. Such statements would clearly send barely concealed messages to these children. Such statements would suggest to the children that there is good reason for them to not wish to live with their mother and would suggest that they should not desire it.
465. I accept that Mr Proctor, as is suggested by the Family Consultant, initially stated that he could not support the relationship between the children and their mother. Further, I am satisfied that this is, in fact, the accurate description of his position.
466. Mr Proctor has led no evidence at all that would suggest any step he has taken to support the children’s relationship with the mother let alone to aid compliance (either as to the terms of those Orders or their spirit) with the Orders made for the children’s time with their mother. I am not satisfied, having regard to the totality of evidence, that Mr Proctor is capable of doing so.
467. In turning to issues of family violence Mr Proctor was consistent as between his statement to the Family Report Writer and his evidence before the Court. The Family Report records:
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     Mr Proctor reported that he had only ever harmed Ms Proctor in self-defence.^[143]

468. And:
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     Mr Proctor stated that Ms Proctor was constantly verbally abusive towards him and the children.^[144]

469. As I have made clear in the discussion of evidence above, I do not accept that there is evidence that would support Mr Proctor’s assertion of abuse^[145] towards either Mr Proctor or the children or any of them.
470. Also with respect to family violence and the parties continued residence under the one roof, notwithstanding the tumultuous and disastrous episodes of family violence alleged to be occurring on a regular and frequent basis, Mr Proctor is reported as follows:
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     Mr Proctor stated that he had stayed living with Ms Proctor for the “children’s sake”. He stated that he did not want the children to come from a “broken home”. Mr Proctor said that (omitted) Domestic Violence Team had caused his family to “break up” because they had fed Ms Proctor “stories to cause problems”.^[146]

471. This portion of the Report is somewhat telling.
472. At least in past generations it is suggested that there has been a desire to “stay together for the sake of the children”. That these parties have remained residing together under the one roof for a period of at least 20 years whilst such substantial chaos, conflict and family violence has occurred has been disastrous for these children. I am certainly not satisfied that Mr Proctor has remained for the “sake” of these children.
473. Mr Proctor has expressed the concern that he did not wish the children to come from a “broken home”. One cannot imagine a home more broken than that in which this family has lived together.
474. As is noted in the discussion of the Police records produced to the Court there has been a 20-year history of Police attendances at the home of these children regarding and responding to complaints of family violence. There has been a substantial history of involvement with the Department of Family and Community Services.
475. I accept that the children, all four of them, have been exposed to the type of behaviour as depicted in the video produced by Mr Proctor and subsequently destroyed by him. That is not suggestive of seeking to achieve anything for the children’s sake.
476. The Family Report Writer gave clear evidence that the children’s exposure to that household over an extended period of time would cause significant disadvantage to these children, including difficulties in establishing and maintaining future relationships, possible mental health issues for the children and learning and behaviour problems.
477. Certainly X is struggling somewhat at school (although this may well also be impacted by the failure of the parties and, since April 2014, Mr Proctor to address the child’s speech impediment).
478. From the little that is known of the adult children, Ms P and Mr R, it would appear that the potential disadvantages created for these children by conflict and violence having been circumjacent to their existence and having permeated each aspect of their childhood, have been realised for their elder siblings.
479. Mr Proctor’s discussion within the Family Report of the children’s alleged “abuse” by Ms Proctor is consistent with Mr Proctor’s evidence on oath, namely, that he has never witnessed any such abuse. The following is reported:
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     Mr Proctor stated that Ms Proctor had physically abused the children on three occasions. He said he had not witnessed any of these incidents, but provided details for two of the alleged incidents. He stated that Ms Proctor had hit Y on the ear with a key ring. He stated he had taken her to a general practitioner in (omitted), but left when the general practitioner threatened to telephone the police. On the second occasion, Mr Proctor alleged that Ms Proctor had hit X on the shoulders causing bruises. He said that he did not know what she hit him with. He said that he did not ask X what had happened. He reported that the photos of this injury were attached to one of his affidavits.^[147]

480. As indicated in a discussion of the evidence above I am not satisfied that there is any material before this Court that would warrant a positive finding that Ms Proctor has physically assaulted any of the children. I am not satisfied that the evidence would warrant or safely support a finding that the children are or would be exposed to an unacceptable risk in the mother’s care.
481. I am satisfied that the evidence, taken in its totality, supports a finding that the children would be exposed to a risk in the father’s care, perhaps not a risk within the context of that discussed in the jurisprudence relating to “unacceptable risk” and, perhaps, not falling within the section 4  Family Law Act 1975  definition of “abuse”. The risk arises from the father’s continued exposure of the children to his views of the mother, his involvement of the children with his attitudes and views as well as in disputes between the parents.