Counselling and coaching

Counselling and coaching

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

Counselling records

334. Counselling notes are produced in relation to all four children.^[104]
335. What is immediately apparent regarding the counselling notes for when the four children are seen together is that the children attended that counselling in company with Mr Proctor. It is difficult to ascertain the extent to which information is provided by Mr Proctor or by the children. It is difficult to ascertain the extent to which the children’s comments to the counsellor upon whom they attended (Ms N) are led by that which Mr Proctor has reported, influenced by that which Mr Proctor has reported or statements by the children independent of Mr Proctor. I am satisfied that the latter proposition is the least likely.
336. The material that is produced from Ms N is largely contained in a letter addressed “to whom it may concern” annexed to Mr Proctor’s Affidavit. The document is not properly admissible, save for section 69ZT of the Act and, when admitted pursuant to section 69ZT(1) of the Act could not be afforded any substantial weight. Ms N has not been called and thus her evidence cannot be tested.
337. Material is produced by (omitted) Medical and Dental Centre at which Centre Ms N is engaged.^[105] These notes do not cast any real light upon the above conundrums. What the notes do make clear is that Mr Proctor attends with the children (or such of them as are presented to the practice) on each occasion they attend.
338. Ms Proctor gives evidence that she had, until approximately 2009, been primarily responsible for taking the children to the doctor. Ms Proctor indicates that she took the children to a different medical practice than the (omitted) Clinic and that the father, for reasons that the mother explains in her Affidavit material, determined that he did not wish to attend that practice further and began attending the (omitted) Practice.^[106]
339. On at least some of the occasions that Mr Proctor has attended the practice during the course of these proceedings, Mr Proctor has discussed with the doctor upon whom he has attended both the proceedings and the allegations made and has sought assistance in relation to his stress and worry in relation to the case. Frequently the children would appear to be present during these discussions.
340. When Ms P is first presented to the practice in 2010, she is taken by Mr Proctor. Mr Proctor reports with respect to Ms P’s difficulties (anxiety and eating problems) “has problems at home due to unstable family environment – mother screams and father takes care of most”.^[107] The history related of the diagnostic purposes is somewhat inaccurate by reference to the evidence in these proceedings.
341. Similarly, X is presented by and with his father 16 October, 2014.^[108] It is recorded, “not happy to X stay with mum (sic), happy in dad’s place with (sic) other siblings”. What weight can be attached to that record as an accurate reflection of the child’s views when the record does not demonstrate from whom the information was obtained is very little if any.
342. Overall, I am not satisfied that I can place any weight upon the practice’s records as demonstrative of anything other than Mr Proctor presenting the children from time to time with suggestions, principally if not solely raised by Mr Proctor, of certain actions.
343. Ms Proctor has given evidence of her awareness of Mr Proctor seeking counselling and other interventions in the lead up to their separation. Ms Proctor expresses the view that she feels that Mr Proctor was engaged in a deliberate course of action to seek to obtain evidence corroborative of his position having first influenced the children as to the statements that they would make.
344. There is some plausibility to the above suggestion made by Ms Proctor, particularly noting that the interventions that are put in place at various times are short lived and, having documented that which is raised as concerning, would appear to be discontinued. Mr Proctor certainly continued to attend upon Ms N for some time. However, the children’s interventions are relatively brief and, very much like the much-needed speech pathology for X, not arranged or addressed by Mr Proctor.
345. The school counsellor notes for X^[109] and for that matter Ms P^[110] make clear that the counselling, on each occasion, has been sought out and instigated by Mr Proctor rather than by the child or school. The letter (again addressed “to whom it may concern” and dated 12 June 2009”) commences with the statement “I am writing in support of Ms P and her father”.
346. The author of that letter is not available for cross-examination. Their notes are not produced. The letter does make clear that the counsellor “… Has made several notifications to the Department of Family and Community Services,” thus confirming that the reports to the Department regarding Ms P have arisen from prior statements to the counsellor rather than direct observation by the reporter.
347. With respect to the counselling records of Ms P, I am not satisfied that any weight can be attached to them. This arises by reference to the above discussion of the rules of evidence and particularly sections 135 and 136 of the Evidence Act 1995. Further, I am not satisfied that any statement by Ms P is credible in light of her clear enmeshment and alignment with her father and her engagement in what would appear to be accurately described as a “common purpose” with him.
348. The counselling notes for X are tainted, from the outset, with the difficulty that Mr Proctor asserts that the counselling was arranged independently of him and that he had no involvement in its instigation. The counselling notes make clear that “X was referred to the school counsellor by his father and the principal”.
349. The “Referral to School Counsellor Information from Parents” form which has instigated the counselling in November 2014 (during the course of the proceedings and after Orders had been made for X and Y’s time with their mother), is completed and signed by Mr Proctor.
350. The reason for referral and concerns given by Mr Proctor are, “X is very very upset going to his mother’s every weekend and now it is escalating into where he and all his siblings are affected”.
351. The counselling notes commence 18 November 2014. The only complaint made by or on behalf of X is, “X reported strongly disliking going to his mother’s house every weekend… He spoke about feeling angry and upset about some of the things his mother says about him… He seemed resistant to making adjustments [the counsellor having suggested strategies that might assist him in feeling more comfortable]”.
352. In a phone call with Mr Proctor the same day Mr Proctor is reported as seeking, “… He would like his son to be supported over the next few weeks… X’s father is uncertain as to the high school X will be attending…” It is to be noted that X was to transition to High School in 2015.
353. In an appointment 25 November 2014 the following is recorded “X spoke about trying to get out of going to his mother’s place and wished he could see his father on the weekends instead”. X spoke of desiring his elder brother Mr R attending with him and was encouraged to explore this with his father.
354. The final appointment with X occurred on 3 December 2014. It commences:
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     X reported not wanting to have any relationship with his mother. He disclosed that his father was unhappy about his mother withholding money from them… He compared his mother’s place to a (prison) cell due to there being nothing to do there. He stated that he had talked to his father about having his brother spend time with him at his mother’s place and was told it would be up to his brother… X is still yet to enrol at a high school.

355. Mr Proctor has asserted vociferously that he wishes all four children to have a relationship with Ms Proctor. What is clear from the above record is that:
     1. Mr Proctor’s support and encouragement of Mr R having a relationship with Ms Proctor is to leave it to that (now adult) child;
     2. Steps that could have been taken to assist X’s suggested concerns about spending time with his mother were not taken, Mr Proctor preferring, instead, to have X’s statements documented by the school counsellor and doing nothing else and certainly nothing else towards resolving the suggested issue;
     100. X’s statement that there is “nothing to do” at his mother’s would appear out of step with Ms Proctor’s evidence as to the activities in which she engages the children whilst in her care and as corroborated by Y’s statements to the Family Report Writer;
     4. Mr Proctor’s attention to X’s enrolment at High School would appear deficient having still not enrolled him 2 weeks before the conclusion of Primary School. This is consistent with Mr Proctor’s failure to take any action to address X’s speech difficulties;^[111]
     5. Mr Proctor involves the children in inappropriate adult discussion, which involvement is disclosed by X immediately following his statement that he does not want a relationship with his mother. I am satisfied that such discussions have likely contributed to any view expressed by X and that X’s views, as expressed, are consistent with, aligned with and reflective of those of Mr Proctor.
356. I do not place weight upon the counselling records. They are not demonstrative of any behaviour in which Ms Proctor has engaged. To the extent that the documents are annexed or produced for that purpose I reject them.
357. At their highest the school counselling records demonstrate X being presented to a school counsellor on three occasions in late 2014 and repeating statements that are:
     1. Entirely consistent with and reflective of Mr Proctor’s attitudes towards X’s relationship with Ms Proctor (being negative and oppositional); and
     2. Inconsistent with that which is clearly and objectively reported of the children’s time with Ms Proctor as demonstrated by the preponderance of evidence.