Departmental records

Departmental records

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

Departmental records

271. The Department’s records provide a real and significant insight into this family and particularly the vexed question of X and Y’s alleged attitude towards their mother.
272. The Departmental records contain reports by and with respect to Ms P made in 2008. Those reports, whether by Ms P directly or by the counsellor with whom she had spoken, are infected with the same lack of credit and reliability that applies to Ms P’s evidence generally.
273. A criticism of the mother is that she is alleged to call each of the female children names such as “slut” and “bitch”. I am satisfied on the evidence, taken in its totality and particularly the Police material discussed above, that they are words that these children are familiar with hearing and used by their father with respect to their mother. It is possible, if not probable, that reports that the mother is engaged in such name-calling relate, instead, to Mr Proctor’s name-calling of the mother or are a repetition by the children of the father’s words and attitudes.
274. The most telling document tendered from the Department’s material is a set of case notes from the (omitted) family violence service. To the extent that those notes include direct observation and perception, I am satisfied that weight should be attached to them and that those notes should be accepted as more probably correct than not. I accept and prefer those records, subject to the above caveats, to the evidence of the parties and especially the evidence of Mr Proctor.
275. Notes produced with respect to 9 January 2015 and 17 January 2015 are particularly illuminating.
276. On 9 January 2015 a worker from the domestic violence service drove Ms Proctor to (omitted) Police Station where a changeover of the children between the parents was to occur. The worker records in the notes their direct observation as follows:
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     Mr Proctor arrived at the police station at 5 PM with the children. He appeared very angry. This was apparent by his facial expression and the tone of his voice. Mr Proctor shouted to the children “don’t talk to her

     [the mother]

     she is the enemy” and “she is a stranger, you don’t know her” (this was directed toward me). He said this loudly many times. The children sat down and did not answer their father just looked around anxiously. Mr Proctor shouted “don’t talk to her she is not your parent”. The children sat stiffly and appeared very anxious and their facial expressions appeared serious and concerned.

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As Mr Proctor left the police station he shouted out again to the children “ring the police if you need to, she is the enemy, she is not your parent”. Mr Proctor left the station. The children did not answer their father. I observed Mr Proctor cross the road he then turned around and headed for the police station but did not come in and walked away. Throughout this time Ms Proctor did not say a word she appeared to be very frightened of Mr Proctor. We sat a few minutes and once we were sure Mr Proctor had left Ms Proctor talked to the children and they gave each other big hugs. The children relaxed and started chatting to myself and Ms Proctor. Ms Proctor took them for a drink and they settle down laughing and talking. The children said they did not go away for holidays and talked about Christmas dinner at home. On the drive back the children were relaxed and chatted to Ms Proctor about what they would like to do over the next few weeks.

277. I find this evidence extraordinary. I also find it extraordinary that it was not put to either of the parents nor to the Family Consultant. The document was tendered as part of a bundle at the conclusion of the evidence.
278. I am satisfied that this passage represents the best evidence available to the Court as to the children’s interaction with Mr Proctor, Mr Proctor’s attitude towards the children’s relationship with their mother and Mr Proctor’s parenting generally.
279. Consistent with the occasion when Ms Proctor had attended at X’s school and the “three-hour stand-off” that ensued, the children were directly influenced by their father, acting under his authority and direction almost as sane automatons and unable to express their own will. Conversely, away from Mr Proctor and his direct influence, the children have been able to quickly express their genuine self, interacting warmly with their mother “laughing and talking” appearing “relaxed” and interested in and engaged with their mother.
280. The entry of 17 January 2015 is similarly illuminating. This entry is the day after Ms Proctor had taken X and Y to speak with the Independent Children’s Lawyer and X had spoken with his father from the public toilet at (omitted) Railway Station and then rendezvoused with his father to be taken by Mr Proctor to (omitted) Police Station to report that he had “run away” from the mother.
281. On this occasion, Y having remained in the mother’s care, the following is recorded:
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     Ms Proctor said that Y broke down and told her and her friends that Papa gave X a phone and he had kept it in a sock in her underpants. She said that X was ringing his dad every day. She said that Y told them that Papa said to spit at her and at me.

282. The notes then go on to refer to a conversation (whether on the same date or otherwise) between Y and a Police Constable, Constable G during which conversation the family violence worker was present and records:
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     Y stated things such as:

     • Her Dad told her and her brother to tell the ICL that they wanted to stay with him. She was nervous when she told the ICL that she wants to stay with her dad even though she doesn’t.
     • Her Dad told her to spit on her Mum’s case worker Ms T.
     • To break her mother’s fridge so that she had to buy a new one.
     • When her father is angry at them, sometimes he does not give them dinner. Constable B asked if anything else happens when they are in trouble? Y said no.
     • Her brother run away and met with her dad.
     • Y gave the police her letter which describes her fears.
283. The letter to which the case worker refers is attached to Ms Proctor’s Affidavit.^[101] That letter was written whilst the children were in the care of the mother. The weight that can be attached to it is not significant. However, I do not disregard the letter altogether.
284. Within the letter Y describes that her father had told her to tell the Independent Children’s Lawyer that “mummy spits on us and that she yells and screams”, that her father has four names for her mother “that woman, your mother, that bitch and that slut”, that the father had told them to “tell mummy to buy the things we want whether we want it or not” and that her father had “told me and X to bang the ICLs table and keep on repeating that I want to live with my dad. If we don’t say the things [dad] told us we will pay the price”.^[102]
285. The Departmental records, particularly that taken from the notes produced by the family violence service, are compelling in suggesting a significant degree of control and influence by Mr Proctor over these children. Mr Proctor has denied any such behaviour and yet it is directly observed by the family violence case worker in a most insidious form.
286. The above matters cause me real concern as to Mr Proctor’s credit and any weight that I can attach to any evidence that he has given in these proceedings. They also leave me in little doubt that Mr Proctor has actively sought to influence X and Y in their behaviour and that expressed by them and that he has a significant influence over both children but especially X.
287. In addition to the reasons already articulated, I am satisfied that whenever there is dispute between Mr Proctor’s evidence and that of any other witness or business record tendered in the proceedings that the other evidence and business records are to be preferred.
288. In light of this I am satisfied and so find that:
     1. Mr Proctor has deliberately sought to undermine the relationship between Ms Proctor, X and Y;
     2. Mr Proctor has actively influenced and controlled X and Y;
     100. Mr Proctor has actively influenced the behaviour and the views expressed by both children;
     4. As a consequence of the above, I am not satisfied that any negative view of the mother as expressed by the children as a genuine view of these children and is, in all probability, a view dictated to the children and maintained in direct response to Mr Proctor’s influence and control over them and through the creation in the minds of the children of false beliefs as to the mother’s behaviour and potential risk to them. There is certainly nothing in the evidence, as discussed above, that would found such views in the children’s lived experience;
     5. As a consequence of the above no weight can be attached to the children’s views as expressed or suggested to have been expressed to the Independent Children’s Lawyer or to the Family Report Writer in opposition to a relationship with the mother.