Family violence

Family violence

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

Family violence

787. In this case, as in so many which come before the Court, the danger to these children and the harm and disadvantage that they have suffered has originated from their own parents and within their own family. Much of this has been as a consequence of exposure to family violence which assumes significance in this case. That is so irrespective of which body of evidence is considered.
788. It is often asserted that interference in the “private affairs” of the family should not be countenanced, contemplated or considered necessary. This appeared to be no small part of Mr Proctor’s complaints of “cultural imperialism” to which I have already referred.
789. Historically, it has been within this culture of the family, and other institutions such as the church, as the private domain, indeed a culture of “domestic secrecy” and collective “turning a blind eye”, that abuse of children within their home (as well as such abuses of children as are presently being explored by the Royal Commission into Institutional Responses to Abuse), could flourish and remain largely unchecked.
790. This turning a blind eye towards the private affairs of the family and the institutional and political belief that events that occur within the privacy of one’s own home should not be the subject of public scrutiny or discussion, has allowed abuse and family violence to go unchecked. One would hope that those days are over. They should be. Indeed, they must be if the Court is to achieve its legislative mandate to prioritise the protection of children from such behaviours^[231] and in the context of the political discourse that “domestic and family violence is unacceptable”.^{[232] [233]}
791. A central focus of this case, regrettably so common as to be expected or routine, are allegations of family violence. This case is, perhaps, emblematic of the difficulties in objectively defining or understanding the nature of family violence.
792. Family violence is experienced. It is perceived. It is personal to those who have experienced it.
793. An understanding of family violence is not available in a dispassionate or objective sense. An individual’s experience of family violence is not capable of judgment and interpretation by Lord Collin’s “man on the Clapham Omnibus”.^[234]
794. Issues of family violence are better understood from the perspective expressed by LJ Lawton in R v Blaue^[235] “… Who uses violence on others must take their victims as they find them”. Action can be clearly and objectively defined. The experience of that action and reaction to it is personal to the individual and informed and determined by that individual’s past life experience, beliefs, frailties and myriad other factors.
795. The experience of the “victim” is that which must be focused upon and sought to be understood if, as the Court must strive to do, the consequences of family violence are to be understood and made relevant in determining the best interests of children.
796. Family violence is, in this case, an issue of centrality though not paramountcy.^[236] Family violence is an issue that will require substantial discussion. I will turn to that discussion shortly in considering the evidence.
797. In dealing with these proceedings and specifically in addressing the significant issues of family violence that arise, I have had regard to the Family Violence Best Practice Principles Version 3.2. I do so on the basis, as the principles themselves provide, that:
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     The Best Practice Principles are applicable in all cases involving family violence or child abuse or the risk of family violence or child abuse in proceedings before courts exercising jurisdiction under the FLA. They provide useful background information for decision makers, legal practitioners and individuals involved in these cases.

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The Best Practice Principles are a voluntary source of assistance to judicial officers and legal practitioners and are not a fetter to a court’s discretion (Cameron & Walker [2010] FamCAFC 168; (2010) FLC 93-445). These Best Practice Principles are not a substitute for evidence in individual cases.

798. The Family Violence Best Practice Principles commence with an erudite summary of that discussed by the Full Court in Amador & Amador^[237]as follows:
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     Importantly, the FLA does not require independent verification of allegations of family violence (such as police or medical reports) for a court to be satisfied that it has occurred. As the Full Court of the Family Court said in Amador & Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268:

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     Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a Court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission.

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The victims of domestic violence do not have to complain to the authorities or subject themselves to medical examinations, which may provide corroborative evidence of some fact, to have their evidence of assault accepted.

799. Leaving aside other evidential issues which might arise in these proceedings (such as the Application of section 140 of the Evidence Act 1995, which are the subject of further discussion by the Full Court in Amador & Amador) this passage represents a useful starting point for a consideration of the evidence of family violence in this case.
800. The evidence of family violence in this case is substantial. The parties have a vast history of engagement with the Police, the Department of Family and Community Services and other agencies and persons.
801. The consideration of allegations of family violence should occur by reference to the whole of the evidence, as a continuum. That is the most instructive way to approach and understand that which has occurred and the experience of the “victim”.^[238]
802. Family violence is a relational experience, a process or system. The experience, the process or system, cannot be properly or fully seen or understood by dissecting the evidence and compartmentalising it, evaluating one event against others. The evidence is a whole, it interconnects and interacts and must be seen and approached in this way lest the patterns, the recurrences, the typifying behaviours might be missed.
803. Whilst corroboration of family violence (by independent witnesses, contemporaneous reporting or otherwise) may not be required to allow acceptance of evidence of family violence, the availability of corroborative evidence and a failure to then call evidence that is corroborative is relevant. Issue would arise, for example, by reference to the rule in Jones & Dunkel.^[239]
804. I am satisfied that Ms Proctor has established that she has experienced family violence at the hands of Mr Proctor. To the extent that the evidence establishes that Ms Proctor has inflicted family violence upon Mr Proctor, I am satisfied, on balance, that the predominant perpetrator of family violence and, when not physical violence, the predominant instigator and aggravator of family violence and conflict has been Mr Proctor.
805. As I have already indicated there is little to be gained from seeking to apportion culpability for these children’s exposure to family violence as between these parents. They have each done so even if I am satisfied that Mr Proctor is perhaps the more culpable. The impact upon these children is the same.
806. There are two additional, important considerations with respect to family violence in this case.
807. Firstly, when one has regard to the section 4AB definition of family violence in the Act and, in particular, the illustrative description of behaviours which might constitute family violence and exposure to it, it is possible to describe at least some of the behaviours of Ms P as falling within that definition.
808. I am satisfied that these children have very much been exposed to derogatory taunts of a repeated and perpetual nature with respect to their mother and their relationship with their mother by each of their father and Ms P. I am also conscious that Mr Proctor and Ms P have each through their words, actions and attitudes prevented these children from making or keeping connections with their mother – an example of behaviour that may constitute family violence as set out at section 4AB(2)(I) in the Act.
809. Secondly, it is important to observe that the behaviours undertaken by Mr Proctor and by Ms P have been with the intent, I am satisfied, to “coerce and control” X and Y.
810. The intent and effect of the behaviours of each has been to discourage the children from participating in and practising a relationship with their mother. Those behaviours have been highly effective particularly as regards X who is now so enmeshed in those behaviours that when it was put to the Family Report Writer that it “may be too late” to salvage any functioning relationship between X and his mother, she responded “possibly”.
811. To that end I am satisfied that there is some value in the apportionment of culpability. As regards the intent and consequence of family violence Mr Proctor and Ms P have been deliberate and conscious in their actions and have thereby inflicted significant damage upon X’s relationship with his mother.
812. I am not satisfied that damage to the same extent has been inflicted upon Y’s relationship with her mother, although that relationship is, if not on an “endangered species” list at least on a “threatened species” list and having deteriorated since the release of the Family Report when it would have been clear to Mr Proctor and Ms P,^[240] that the child was expressing a clear desire to have a relationship with her mother and, in fact, expressing a greater closeness to her mother than to either her father or her elder sister.
813. To the extent that Y has, since the Family Report was released, expressed to any person a view to not spend time with her mother, I am satisfied that such a view:
     1. Would be heavily influenced by Mr Proctor and Ms P;
     2. Is not a “genuine” or “authentic” view of Y;
     100. Would not reflect Y’s true feelings;
     4. Should be discounted if not ignored and reliance placed, instead, upon that expressed by Y to the Family Report Writer. The relevance of Y’s suggested changed view is its demonstration of the capacity of Mr Proctor (amply aided by Ms P) to influence the views of his children.