Children and their perspective – Family Report

Children and their 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

509. The Family Consultant’s interview with X demonstrates the extreme polarisation of his views as between his mother and father. The Family Report Writer records:
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     X stated that he attended on the school counsellor and told them everything “mum does to me”

     .

     X said that he was very confident regarding the Family Report interviews. He stated that every time he saw a professional, he wanted to tell them the truth about his mother.^[157]

510. I do not accept that X has reported the “truth” about his mother to the Family Report Writer or any counsellor that he has ever seen.
511. In the above discussion of the evidence, particularly that relating to school counsellor’s records, I have made clear that I do not accept that X, or for that matter Ms P, have necessarily related “real events” to the counsellors they have seen. What is telling about this portion of the Report, however, is the zeal which X demonstrates in his desire to tell the “truth” about his mother.
512. X’s views, as stated to the Family Report Writer are set out as follows:
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     X said that he wanted to live with his father, and spend no time with his mother….X said that Y was going to say she wanted to spend time with their mother in her interview. He stated that he believed this was due to her not wanting to cause problems with their mother. X said that he did not trust his mother to look after Y as she (his mother) was “mental”. He stated that his mother might “drown or kidnap” Y.^[158]

513. The reference by X to drowning and kidnap is particularly curious. The only suggestion, in any of the evidence, of “drowning” is a criticism, by the adult child Mr R, that Ms Proctor had taken X and Y to a beach and had not properly supervised them even though she knew that they could not swim. Such criticism is not raised by Mr Proctor nor by X or Y.
514. The only reference in the evidence to kidnapping is the suggestion by Mr Proctor that Y had been “kidnapped” when she had been over held by Ms Proctor at the conclusion of the January, 2015 school holidays (being the holiday period wherein, on 16 January 2015) X had left the mother’s care after his collusive telephone communication with the father and his rendezvous with his father shortly thereafter.
515. The comments made by X in the above paragraph give me some real concern, if not some insight, into the extent to which X is involved in discourse with Mr Proctor and his elder siblings regarding criticisms of Ms Proctor.
516. To the extent that X would appear to adopt statements made by Mr Proctor and his elder siblings without any other foundation or basis, I am satisfied that further support is lent to a finding that Mr Proctor and the elder siblings, whose views are very much aligned with Mr Proctor at least as regards their negativity towards Ms Proctor, strongly influence these children against their mother and any relationship with her.
517. X denies that he has been influenced by his father (and presumably his elder siblings) and volunteered the following to the Family Report Writer:
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     X reported that his father had not influenced him to say he wanted to live with him. He said that his father just told him to “tell the truth”. X said that his father was “always fair”. X said that his mother had also told him to “tell the truth”. He said that in her case, however, it meant he was to tell the Family Consultant that he wanted to live with her. X said that he knew there was different meaning to the parent’s similar statement because he knew his dad so well.^[159]

518. X’s statement, again, gives some indication of the strident polarisation of his disparate views of his parents. Even when each parent has said the same thing to him, on X’s account, he perceives that the mother’s comments are negative and the father’s entirely positive and supportive. I do not accept that it is so in reality and thus a further instance of X’s “false reality” is revealed.
519. As regards the issue of “abuse” X is reported as follows:
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     X reported that his mother had been physically abusive to him….X stated that his mother had “nearly ruined

     [his]

     childhood”. X said that he believed his mother wanted him to be afraid of her.^[160]

520. It is, perhaps, telling that X raises the issue of “fear” in the terms that he does. X does not suggest that he is fearful of his mother only that he perceives that she wishes him to be afraid of her. I do not accept that it is so.
521. As regards present circumstances and particularly suggested “physical abuse” X is reported to state the following:
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     X said that his mother did not currently physically abuse him. He stated that this was likely due to the Court proceedings, and her fear she would get in trouble if she did. He stated that she still tried to start verbal arguments with him, and that she swore, called him names and yelled at him.^[161]

522. I am satisfied that the most reliable evidence as to that which presently, or at least until November 2015, occurred during visits between X and his mother is the evidence of Ms Proctor and the comments of Y to the Family Report Writer.
523. Both Ms Proctor and Y suggest that the name calling which occurs during visits is undertaken by X towards his mother and his sister. Y refers to her mother speaking back to X and perhaps even raising her voice. That falls well short, however, of starting arguments or swearing at him and calling him names.
524. X describes his relationship with each of his parents in stark contrast. This is set out in the Family Report as follows:
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     X said that he did not believe his mother loved him. He stated that she only wanted him to visit so she could get “

     [his]

     money”. He stated that his father brought him items on a regularly (sic) basis, but that his mother never did.^[162]

525. And:
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     X said that he loved everything about his father….X said that there was nothing he disliked about his father. X said he disliked “everything” about his mother….X said that his mother had put powder in his and Y’s water on the day of the ICL interviews. He stated that he did not know what this was, but he refused to drink his water. He said Y drank it though.^[163]

526. X’s commentary as regards family violence between his parents initially reflects the involvement of both of his parents. However, he would then appear to stop and amend if not correct himself being:
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     In regards to the allegations of family violence between his parents, X started to say “they would fight, they would chuck…” He then stopped speaking momentarily. He then stated “Basically like I said, my dad is a peaceful guy. My mother would always try to start the fight”. He stated that he had seen his mother hit his father once or twice when he was between the ages of two and five. He stated that he had never seen his father hit his mother. He said that, instead, his father would try not to engage with his mother when she started a fight. X said that his mother always thought his father was a “bad person”, but that he is not. X stated that “my dad has not done one single thing wrong”.^[164]

527. This idealised view of his father and his entirely negative, demonising view of his mother is clear and apparent from that reported of X.
528. The Family Report Writer, when cross-examined on the second occasion, conceded that this and other portions of X’s presentation and statements, likely demonstrated a significant degree of influence by Mr Proctor upon the child. The Family Consultant was, however, pessimistic that this degree of control could ever be changed even if the child were now removed from the father’s care expressing the view that X would likely “vote with his feet”. Some greater optimism was presented, as regards this proposition as regards Y.
529. X’s probable reflection of Mr Proctor’s views in statements made by X to the Family Report Writer is also reflected in the following:
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     X said that his mother had previously used “our money” to send him and Y to a private school….X denied that he had discussed this issue with his father or mother. He stated that he had worked out, on his own, that his mother was using his money to pay the school fees.^[165]

530. When X makes this statement it is unclear what he is referring to by the phrase “our money”. However, this criticism by X of his mother is entirely in line with criticisms made by Mr Proctor and his elder sister Ms P. Notwithstanding X’s specific and voluntary denial to the Family Report Writer, I am satisfied that this displays a high degree of influence, if not enmeshment, of X’s views with those of his father and elder sister.
531. The consistency of negativity in views expressed by Mr Proctor, Ms P and X is concerning on a number of levels.
532. The Family Report Writer referred, throughout her cross-examination, to the importance of the relationship between these two children and their eldest sister Ms P whom the Family Report Writer accepted as a person of real significance to these children if not, in all probability, their “primary carer”.
533. I am concerned that criticisms of Mr Proctor as a consequence of his lack of support of the children’s relationship with their mother and his creation in the minds of these children of negative views, unsupported by lived experience or reality, are equally criticisms of Ms P.
534. If the children require, as I am satisfied that they do, protection from their unhealthy and enmeshed relationship with their father then they equally require, to the extent that it must be balanced against other considerations, protection from their unhealthy and enmeshed relationship with their elder sibling Ms P.
535. In relation to Mr Proctor’s support of the children’s relationship with their mother, X is reported as stating:
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     He stated that when he visited his mother’s house, his father told him to have a good time, be safe and to not start any fights with his mother. X said that he did not want to visit his mother at all, but that he had to or his father would get in trouble.^[166]

536. If one were to accept that Mr Proctor does, in fact, take such steps then his actions in seeking to support the relationship are entirely ineffective. However, I do not accept that such steps are taken.
537. That which X suggests as Mr Proctor’s actions is entirely inconsistent not only with the absence of attendance by these children but with the totality of the evidence, including that relating to the changeover observed between these parents 9 January 2015 which I accept is the most accurate reflection of Mr Proctor’s attitude towards and actions in supporting the relationship between these children and their mother. That attitude is entirely negative and positional and desirous of terminating the children’s relationship with their mother.
538. The Family Report Writer’s interview with Y commences with a description by Y of her present care arrangements:
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     Y said that she was sometimes late to school because no-one woke her up. She stated that her father was working most mornings, and so Ms P drove her and X to school. Y said that Ms P took care of her and X, including making their lunches and dinners. She stated that Ms P took them on outings and gave them treats if they were good.^[167]

539. Mr Proctor’s evidence is that he is not in paid employment of any kind and is entirely dependent upon Centrelink benefits. In that context he is highly critical of Ms Proctor for failing to provide financial support or any substantial financial support.
540. It is curious that both Ms P and Y are clear in their description of Mr Proctor being in paid work and being absent from the home for most if not all school day mornings attending to his employment, thus leaving the care of these children to their elder sister Ms P.
541. It is curious if not ironic that this is the very criticism that Mr Proctor makes of Ms Proctor – delegating the children’s care to their elder sibling Ms P.
542. Mr Proctor’s criticism of Ms Proctor’s lack of care to the children prior to physical separation is also problematic, from the perspective of Mr Proctor’s case, as he was also present in the home and not engaged in paid employment, thus begging the question of what role, if any, he saw fit to play and what role he did, in fact, play in the children’s care prior to April 2014.
543. Y’s views are expressed in the following passage of the Report:
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     Y said that she wanted to continue living with her father because her siblings also lived there. Y said that she wanted to continue visiting her mother. She stated that she would prefer to only visit her mother every second weekend though….Y said that when her father knew an interview was coming up, he told her to say to

     (sic)

     she wanted to live with him. She said her mother said the same thing, though not as much. She stated that neither parent talked to her regarding her spending time with the other parent.^[168]

544. I accept that Y made these statements to the Family Report Writer.
545. I will deal with the statements and the weight to be attached to the children’s views in due course and in a consideration of the legislative pathway.
546. The influence that each parent, particularly but not limited to Mr Proctor, has sought to exert upon Y is clear. I am satisfied, however, that the influence exerted upon Y by Mr Proctor and the pressure occurring within his household (including by the elder siblings) is far greater than anything undertaken by Ms Proctor.
547. It is also somewhat telling that whilst Y has clearly identified that each of her parents has sought to influence her statements to the Family Report Writer as to the parent with whom she would prefer to live that neither parent has had, apparently, raised with her any issue as to the time that she would spend with the other parent.
548. During the Family Consultant’s second round of cross-examination I had raised with the parties and the Independent Children’s Lawyer, as well as with the Family Consultant, the stark reality that irrespective of the parent with whom the children live (whether they live with the same parent or different parents) that there is no reasonable likelihood that a relationship could be maintained with the other parent or members of their household. The Family Consultant, both as regards this stark proposition and the proposal by Ms Proctor from a moratorium on time and then a period of supervision, accepted these realities and proposals.
549. In light of the criticisms that are made by Mr Proctor, Ms P and X as to the lack of activities whilst in the mother’s care, Y’s comments on this topic are illuminating:
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     Y said she liked that they went on lots of outings when she visited her mother. She stated that they visited friend’s houses, went shopping, went to parks, and had gone on holidays to (omitted). Y said that she was closer to her mother then her father, but that she was still close to her father.^[169]

550. It is difficult to reconcile Y’s self-assessment of her relationship with each parent with Mr Proctor’s case (not only his own evidence but that of Ms P and X’s attitudes and comments).
551. It is clear that Y expresses a closeness in her relationship with her elder sibling Ms P. This is not surprising given that Ms P would appear to provide the majority of her care and certainly has done so since April 2014. This heightens the concern which I have as to the appropriateness of that care arrangement.
552. I accept Y’s comments that she feels close to her mother. At this point there is nothing to be gained from mathematising Y’s closeness with either parent (although Y clearly does so). It causes me great concern that between Y expressing such views to the Family Report Writer in late May 2015 and the present and without any evidence suggesting act or omission by Ms Proctor which would negatively affect or change those views, Y is now suggested to be resistant to even spending time with her mother.
553. What is also concerning is the lack of challenge to or enquiry into that change by the Independent Children’s Lawyer and the response to that suggested change of view. It is stated, from the bar table, that the child has been reinterviewed and has now stated that she does not wish to spend time with her mother. That is all.
554. Whilst it is conceded that there is nothing in the evidence that would suggest any valid basis for a change of view by the child, at least nothing connected to Ms Proctor, Ms Proctor’s household or her interaction with the child, the suggested change of view is advanced as supportive of the child remaining in the very care arrangement in which such inexplicable changes of view have occurred.
555. The suggested change of view by Y is also suggested by the Independent Children’s Lawyer to support an Order being made for this 11 year old child to spend time with the mother in accordance with her wishes, notwithstanding that it is conceded that Mr Proctor has influenced the child’s views, does not support and will not support the relationship and that the making of such an Order will, in all probability, mean that the child will simply have no relationship with the mother.
556. At this point I make clear that I reject the above submissions and find them unsupported by the evidence before the Court and contrary to the child’s best interests.
557. To the extent that such a position is advanced by Mr Proctor, I am not surprised. Mr Proctor would be fully aware that an Order for each of these children to live with him and spend time with their mother in accordance with their wishes would mean that the children would live with him and have nothing whatsoever to do with their mother. That the Independent Children’s Lawyer put such a submission when it is their role to represent the child’s best interests and to advance proposals which will achieve that purpose concerns me.
558. One basis for the above proposal is the suggested closeness between Y and her elder sister Ms P, in reality her current primary carer. It is submitted that it would be contrary to Y’s best interests to be separated from Ms P in those circumstances. However, for reasons that I will expand upon in a consideration of the legislative pathway, I am concerned that this ignores the reality of that relationship – that it is inherently unhealthy to this child.
559. Y’s relationship with Ms P comes at the expense of the extinguishment of the child’s relationship with the mother which relationship the child concedes as close. It also places the child in an environment and within a household which is, to adopt and accept the submission of Counsel for Ms Proctor, toxic, disadvantageous and injurious to this child’s emotional health.
560. As regards the suggested abuse of the children or any of them by Ms Proctor, Y is reported as follows:
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     Y said that her mother did not hit, yell or swear at her. Y stated that her mother and X did not get along, and that her mother swore at him sometimes when they visited her. Y said that she had seen her mother hit X, on one occasion, when she was around seven years of age. Y said that X did not want to visit her mother now because he did not like how small her house was, and that she never brought him anything. Y stated that X also blamed his mother for catching chicken pox.^[170]

561. Leaving aside Y’s reference to her mother “hitting”^[171] X on one occasion (approximately 7 years ago and when Y was three – four years of age) the bases upon which Y understands her brother to reject a relationship with his mother are somewhat trivial. X’s suggested bases for rejecting a relationship are disconnected from anything which could be described as abuse and entirely consistent with statements and attitudes expressed by Mr Proctor and, in all likelihood, adopted by X.
562. Y comments upon the interaction between her parents whilst they lived under the one roof. I accept Y not only as an accurate historian, even though she is the youngest of the four children, but as the most accurate historian of the four.^[172] Y is reported in the following terms:
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     Y stated that her parents had previously fought with one another. She stated that she had witnessed them hitting one another and yelling and screaming at one another. She stated that the Police had come. She said that she thought her father had usually started the fights, but as she was so young she could not be sure.^[173]

563. The Family Report Writer undertook observation sessions with each parent and the children. The observation session between Mr Proctor and the children also included the two adult children.
564. The observation session between Ms Proctor and the children is described as follows:
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     Ms Proctor and Y casually chatted as they played with games, such as the sandpit and throwing hoops. Ms Proctor made numerous attempts to engage X in play, or conversation. X appeared to actively avoid these attempts by moving away from her when she approached him. He also appeared to ignore any attempts at conversation. Y asked X to play with her at the sandpit, and he did for a while. Y started protesting that X was wrecking her play and Ms Proctor intervened and said “Let him play”. X then walked away and started punching the large foam blocks, whilst looking through the one way observation mirror. At the end of the observation, Ms Proctor and Y said goodbye. Ms Proctor hugged Y. Ms Proctor said goodbye to X and reached out her hand towards his back. X deliberately moved away from her before she could touch him.^[174]

565. Y and her mother are described as enjoying closeness of the nature that Y herself described. The interaction between X and his mother demonstrates X being obstructive and disruptive, disobedient and aloof. This is entirely at odds with the relationship between Ms Proctor and X that is otherwise described in Ms Proctor’s evidence and which I accept as accurate.
566. Real issue arises from the differentiation between X’s behaviour when observed by the Report Writer as reported when transitioning from the father’s care to his mother’s or from school into his mother’s care and his behaviour once he is in the care of his mother.
567. It is clear that during the currency of these proceedings X’s behaviour has continued to deteriorate such that the mother cannot now cajole the child to leave the school with her at the commencement of her time periods. This is in sharp contradistinction to the child spending a block period of time with the mother during the Christmas 2015/16 school holidays and without apparent complaint.
568. It is concerning that since Y has commenced to attend the same school as her brother (High School) that she has also refused to leave the school with her mother. This suggests a degree of influence upon the child not only by Mr Proctor and Ms P but also now by her brother X. This might well be a plausible explanation for why Y, who has previously attended weekend time with her mother without complaint, is now resistant to doing so.
569. Having regard to all of the evidence including that discussed in the Family Report, I am not satisfied that Y’s present reluctance to attend is reflective of any deterioration in her relationship with her mother. I am concerned that her reluctance might, instead, reflect an increasing degree of influence by Mr Proctor and the various members of that household (Y’s siblings). I find that this is the more probable explanation being that Y is now adopting or mimicking the same behaviour as her elder brother and, before his behaviour, that of her elder siblings.
570. The observation session of the children with Mr Proctor and the elder siblings does not suggest anything out of the ordinary. After observing casual interaction attention was turned by Mr Proctor and Ms P to a necklace that Y was wearing and which had been given to her by her mother. The discussion between those present regarding the necklace is somewhat telling and described in the following paragraphs of the Report:
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     Mr Proctor asked Y about her necklace, which jingled loudly saying “Where did you get that”. Mr Proctor asked the children why they had not brought their school bags to the Court. X replied “I wanted to, but she would not let me”.^[175]

571. And:
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     Ms P asked Y where she had gotten her necklace from, stating “look at you jingling and jangling”. Mr Proctor said to Y, regarding the necklace, “You are ten years old”.^[176]

572. The reference by X to “she” is a reference to Ms Proctor, X’s mother. X demonstrates that he has adopted the same nomenclature as his elder siblings and father when speaking of his mother.
573. The discussion with and comments to Y regarding the necklace, a gift from her mother, conveys disapproval to Y as to both the gift and its appropriateness.
574. Under the heading “Evaluation” the Family Report Writer commences with a discussion of the children’s views and the weight which might be attached to them in the following terms:
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     Both children are of an age where some weight could be given to their views about spending time with Ms Proctor. Due to Ms Proctor alleging Mr Proctor has “brainwashed” the children to falsify abuse allegations against her, it is not recommended that the children’s views be the determinative consideration. Instead, the children’s safety, whilst in each parents care, is considered to be the primary consideration.^[177]

575. To the extent that reference is made to allegations of “brainwashing” I do not propose to adopt that language. I am satisfied, however, that the children’s views are highly and significantly influenced by Mr Proctor and the adult siblings who live within that household.
576. To that extent I am not satisfied that I could accept any view expressed by X as genuine, formulated in or from his lived experience or from reality, or other than as a reflection of that which has been created in his mind as a negative view of his mother.
577. Y’s views, at least as regards her perception of her relationship with each parent is, I am satisfied, genuine. At the time of the Family Report interviews she was able to make a frank statement regarding her relationship with each of her parents, considering herself to be closer to her mother than her father.
578. To the extent that Y suggests a preference to live in the home of her father I do not accept that significant weight could be attached to that view.
579. Y is influenced by each of her father and her elder sibling Ms P and that influence is substantial and increasing. At the time of the Family Report interviews, Y remained somewhat resistant to that influence.
580. To the extent that it is suggested that Y’s views have changed since the Family Report interviews, I am concerned that this is reflective of the ongoing influence and negative influence of Mr Proctor and Ms P (and in all probability Mr R and X).
581. X and Y’s views are discussed by the Family Consultant and presented in the following terms:
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     X presented a wholly negative view of Ms Proctor during his interview, and made it clear during the observation that he did not want to engage with her in any manner. Y presented a different, more positive, view of Ms Proctor and their relationship. Y, also in contradiction to X, identified that she wanted to spend time with Ms Proctor. Y presented a positive view of Mr Proctor and her relationship with him. She appeared, however, to be able to acknowledge some short comings with Mr Proctor in regards to his relationship with Ms Proctor. X presented a wholly positive view of Mr Proctor, whereby he could not acknowledge anything negative of him or his behaviour towards Ms Proctor.^[178]

582. To the extent that Y’s view, desiring to maintain a relationship with her mother, is suggested to have changed in the eight months since these interviews, I am conscious that this is within the context of the Report having been released to the parties, the hearing of the case having commenced and Mr Proctor and, no doubt, Ms P continuing to express negativity for and towards Ms Proctor and failing to support if not actively seeking to undermine Y’s relationship with her mother.
583. I do not accept that Y’s views, if they have changed, have changed as a consequence of any act or omission by Ms Proctor. There is no evidence that it is so. The only evidence available and the only explanation which would appear plausible is that Y has continued to be exposed to negative attitudes and including those of her brother X with whom she now attends school.
584. In evaluating the allegations of abuse and informing the view as expressed by the Family Report Writer that those allegations are more probably correct than not, the Family Report Writer has referred to the fact:
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     …that there were many reports made to Family and Community Services (FACS) alleging Ms Proctor had been physically, emotionally and verbally abusive towards the children and their older siblings.^[179]

585. I have addressed the evidence arising from the Departmental records separately to highlight the difficulties that I have with portions of those records. Any complaints to the Department with respect to Ms Proctor would appear to have arisen from the children’s presentation to counsellors and principally the presentation of Ms P to her school counsellor.
586. All four children were presented to the counsellor attached to the (omitted) Medical Centre. It was opined by the counsellor, who would appear to have also made a report to the Department, that all four children had raised concerns of abuse. That suggestion arises in the context of Mr Proctor presenting the children to the counsellor. That which is available would suggest that the initial statements regarding alleged abuse came from Mr Proctor.
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.