Corroboration of evidence

Corroboration of evidence

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

Evidence in the mother’s case

216. In contradistinction to the evidence of Mr Proctor, Ms Proctor’s evidence is internally consistent, plausible and largely corroborated by the material tendered.
217. I do not propose to recite the totality of Ms Proctor’s evidence. I will touch upon certain portions of it for illustrative purposes and will address other aspects of Ms Proctor’s evidence during a discussion of the legislative pathway.
218. Ms Proctor gives clear evidence of the employment that she held as well as the employment Mr Proctor held during the relationship.^[80] Ms Proctor’s evidence concedes the work which was performed by Mr Proctor and, to that extent, corroborates Mr Proctor’s evidence. I am satisfied that this is a significant factor going to Ms Proctor’s credit and I accept her evidence regarding the employment of each of the parties. I accept that evidence in preference to the evidence of Mr Proctor.
219. Ms Proctor devotes substantial time to a discussion of family violence within the relationship. Ms Proctor’s evidence is far more complete, detailed and candid than Mr Proctor’s evidence. Ms Proctor relates various specific incidences of family violence commencing six months into the relationship and continuing until the separation of the parties.^[81]
220. Ms Proctor gives clear details of specific events wherein she sustained injury at the hands of Mr Proctor, including occasions when she required hospital treatment. Material in corroboration of those allegations is tendered and before the Court. Ms Proctor has made a number of prior consistent statements, contemporaneous with events, which are similarly recorded in documents tendered to the Court and corroborative of her position.
221. The evidence of Ms Proctor, unlike that of Mr Proctor, acknowledges negative aspects of her behaviour. Ms Proctor discloses, for example, the occasions when she has been charged by the Police and gives plausible context to and explanation of her behaviour on those occasions.
222. True it is that Ms Proctor largely points to her having retaliated to the behaviour of Mr Proctor. However, she does not frame her evidence in terms which suggests a disavowal of culpability. She acknowledges and accepts, or “owns”, her behaviour.
223. This acknowledgement of behaviour is also in contradistinction to the evidence of Ms P. Ms P was unable to recall any occasion when her father had visited violence upon the mother, notwithstanding that he had been charged and convicted on a number of occasions for assaults upon Ms Proctor.^[82]
224. Ms Proctor’s evidence of violence suggests that violence occurred throughout the relationship. That violence involved the perpetration of violence, harassment and intimidation towards Ms Proctor by members of Mr Proctor’s family particularly his mother and brother. Mr Proctor sought to avoid answering questions regarding his mother’s behaviour towards Ms Proctor asserting “cultural imperialism”. When pressed to answer Mr Proctor asserted that it was Ms Proctor who was the “problem” in those relationships. I prefer the evidence of Ms Proctor on this issue.
225. A significant quantity of evidence is led by Ms Proctor regarding her past care of and involvement with the children as well as her attempts to maintain a relationship with the children since separation. I accept that evidence.
226. In relation to Ms P, Ms Proctor is clear in her evidence that, in her view, Ms P has been cajoled by Mr Proctor to “turn” against her mother. Ms Proctor’s evidence with respect to that which has occurred is clear and precise. That evidence is also consistent with that which is tendered as Exhibits in the proceedings and, I am satisfied, corroborated thereby.
227. Much is made in the evidence of Ms P attending upon a school counsellor and making statements to the school counsellor. These statements would appear to have been repeated, by Ms P and/or by the school counsellor, to officers from the Department of Family and Community Services.
228. Ms Proctor states^[83] that she was unaware that Ms P had attended the counsellor until the notes from the counsellor were produced in these proceedings. Ms Proctor goes on to say about this:
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     This was something arranged by Mr Proctor and I was not informed about it. After Mr Proctor had left work and I started work he commenced a campaign of denigration against me with the children. He took them to counsellors and got them to complain about my supposedly busy behaviour… I deny ever targeting any of my children or picking on them.

229. Ms Proctor goes on to deny the specific allegations made by Ms P.
230. The description of Ms P’s behaviour towards Ms Proctor given in Ms Proctor’s evidence is entirely consistent with that which was viewed in Exhibit ICL2. Ms P, of course, denies that alleged by Ms Proctor, notwithstanding its corroboration by Exhibit ICL2. The combination of Ms Proctor’s clear and specific evidence, its corroboration by Exhibit ICL2 and the disavowal of Ms P as evidenced by the same Exhibit satisfies me that Ms Proctor’s evidence should be accepted as against that of both Mr Proctor and Ms P.
231. Ultimately, Ms Proctor concludes, in relation to Ms P’s allegations that abuse was visited upon her and is suggested to have been visited upon the other three children by the mother, that, “what you have are the memories of a young girl being constantly told by her father that her mother is abusing her”.^[84] Specific examples of behaviour said to support that conclusion are given which are, again, borne out by the Exhibits. I accept the conclusion drawn and offered by Ms Proctor as accurate.^[85]
232. The mother’s time with the children is addressed in detailed evidence of Ms Proctor including through annexure to Ms Proctor’s Affidavit 17 September 2015 and two Affidavits filed in previous Contravention Applications. Portions of that evidence have previously been considered, for example in the interim determination 16 December 2014.
233. Early in the proceedings^[86] Orders were made for the children to spend each weekend during school terms with their mother. This was to be facilitated by changeovers occurring by the mother collecting the children from their school at the commencement of each period and returning them to their school at the conclusion. For other occasions, when the children might not be at school (such as school holidays) changeovers were to occur within the foyer of the (omitted) Police Station.
234. Ms Proctor’s evidence^[87] which was not challenged during cross-examination (and Mr Proctor did not give evidence on the topic) was that the children would frequently be collected from their school before the end of the school day so that they were not available for collection by Ms Proctor. On some occasions Ms Proctor would then be contacted via the father’s mobile phone^[88] and advised to meet Mr Proctor at a McDonald’s restaurant. This had been Mr Proctor’s proposal at interim hearing. The proposal had been rejected.
235. By the Affidavit of Ms Proctor filed for the listing 16 December 2014 additional concerns regarding Ms Proctor’s time with the children were raised. On an occasion 1 November 2014 Mr Proctor went to the mother’s home, entered the home and removed the children therefrom. The mother had been at work that morning and the children were being minded or “kept an eye on” by a neighbour. The Police were involved by the father. Complaints by Ms Proctor that the children were being collected early from school were raised in the same Affidavit and those complaints continued after 16 December, 2014.
236. Perhaps the most concerning incident regarding the children’s time with their mother occurred 10 October 2014. On that occasion the mother attended at X’s then school to collect him for the weekend and the child is suggested to have “… Informed her he was not going home with his mother in the afternoon because he didn’t want to”. It is suggested that the class teacher told the Principal of this and the Principal told the teacher that it was not a matter for her to become involved in and that the child would not be forced to wait and go home with the mother.
237. Notwithstanding that evidence, it would seem that when the school bell rang at the end of the day and the child began to leave the school grounds that the child was spoken to by the teacher and taken to the office. It would then seem that for some hours, approximately 3, that there was discourse in the school office involving or suggested to have involved the child, the mother, the mother’s attorney, the father, the Independent Children’s Lawyer and, ultimately, the Police – called by whom it is unclear.
238. I have described the above events as “concerning” for a number of reasons. If the father is to be believed as to his active encouragement of the children’s relationship with the mother, it is difficult to understand how such a stand-off might have arisen. It causes sufficient doubt as to the father’s evidence on that point that I reject that evidence.
239. Similarly, it is difficult to understand how, if the father so actively supports the children’s arrangements to spend time with their mother, that he did not simply direct the child to attend. The involvement of the Police and what this would signal to the child (let alone the waste of Police time) is concerning.
240. Perhaps the most concerning aspect of the affair, however, is that the child, having been coerced into leaving with the mother, would appear to have spent the weekend with her and would appear to have enjoyed that time and certainly to have raised no complaint.
241. I am satisfied that the above event or events suggest a significant pattern of behaviour by Mr Proctor of involving these children in adult disputes and in doing anything but supporting and encouraging the children’s relationship with the mother.
242. The mother also gives clear evidence as to the events 16 January 2015. On that date the children had been taken into the city by their mother to meet the Independent Children’s Lawyer. Upon returning and alighting from the train at (omitted) railway station X had gone into the public toilets and spoken with his father on the telephone. It is to be remembered that the father, as discussed above, denied this although, when faced with telephone records which corroborated the mother’s evidence, a concession was eventually made.
243. Added to the above difficulties, as described in the mother’s evidence, is the complete absence of time between the mother and the children so far this year or for weekend time following the first tranche of hearing in November 2015. The mother’s evidence in that regard, having been put to the father and accepted by him, is undisputed.
244. I am satisfied and accept that Mr Proctor exerts a significant influence over each of these two young children X and Y. I am satisfied that Ms P also exerts significant influence over these two young children and, I am satisfied, she herself is the subject of significant influence, if not coercion and control, by Mr Proctor. This will be taken into account in assessing any views suggested to be expressed by X and Y or either of them.
245. Ms Proctor’s evidence with respect to financial issues is also significantly clearer than Mr Proctor’s and accepted by the Court.
246. Ms Proctor gives clear evidence of the contributions that she has made during the relationship both financially and non-financially. In fact, Mr Proctor has not sought to cavil with Ms Proctor’s evidence as to the care of these children prior to Ms Proctor first obtaining part-time employment in about 2007. There is no issue that Ms Proctor cared for the children from birth until that time and including the children living with her during any periods of separation between the parties.
247. Ms Proctor sets these out with some specificity her performing or funding renovations and improvements to the home,^[89] the purchase of items for the home, the family and the children^[90] and her payment of expenses including household bills, utilities and mortgage payments.^[91]
248. Finally, and to the extent that Ms Proctor is alleged to experience significant “mental health issues” Ms Proctor has produced material disclosing her past “mental health” treatment in the form of both a Report from the psychiatrist with whom she consulted Dr G^[92] and more recent material that is tendered in the proceedings (Exhibit A1). Further, whilst its admission may only be possible as a consequence of the operation of section 69ZT(1) of the Act, Ms Proctor also produces extensive correspondence from the (omitted) family violence service detailing their past history of involvement with her.^[93]
249. During her cross-examination Ms Proctor was, I am satisfied, doing her best to accurately relate information and to respond to the questions put to her. The mother’s evidence was not significantly challenged or broken down at all by cross-examination. Indeed, to the contrary, Ms Proctor’s evidence with respect to family violence became far more detailed and compelling (particularly in response to questions by Mr Proctor, self-represented and the alleged perpetrator of violence).
250. I accept Ms Proctor as a witness of truth. Whenever the evidence of Ms Proctor is at odds with that of Mr Proctor or Ms P, I prefer the evidence of Ms Proctor.