Presentation of “evidence”

Presentation 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 father’s case

158. Mr Proctor’s evidence, to the extent that it is relevant to the parenting issue, is largely comprised of broad, sweeping allegations of the following nature:
     1. “The abuse and violence by Ms Proctor on my children affected their statement (sic) of mind to such a degree that they have been having regular counselling sessions with a psychologist”;^[64]
     2. “There are so many instances of this harassment and abuse by Ms Proctor…”;^[65]
     100. “All I ever did was to try and defend myself against her rage and violence”;^[66]
     4. “It was Ms Proctor who neglected our children in every aspect, during all their growing stages. There is ample evidence of Ms Proctor’s abuse from photographs, school councillors(sic), therapists and police reports”;^[67]
     5. “There are quite a number of other persons who are willing to give evidence in support of the evidence provided herein regarding violence, abuse and lack of any commitment to the children at all by Ms Proctor”.^[68]
159. The one attempt at specificity in Mr Proctor’s evidence was the annexure of two photographs of X^[69] and the allegation that these depicted “injuries to my son”. The photographs depicting an area of apparent bruising on the child’s left shoulder.
160. Mr Proctor put the photographs to Ms Proctor during his cross-examination of her. Whilst Mr Proctor had been non-specific in his Affidavit as to when the photos were taken he put to Ms Proctor that they had been taken into 2010. Ms Proctor denied this, suggesting that the marks to the child’s shoulder occurred when he was 3 to 4 years of age when he had been bitten by mosquitoes and had an allergic reaction. At that point Mr Proctor suggested that “the children told me X had been bashed up” revealing, if not confirming, that Mr Proctor had never directly witnessed any physical behaviour by Ms Proctor towards the children.
161. In light of Mr Proctor’s propensity to contact and involve the Police at any time that he has suggested that he has had any concern or when he has perceived that it would bring advantage to him, one might think that Mr Proctor would have contacted the Police on this occasion. He did not.
162. I have some concern as to acceptance of Mr Proctor’s evidence on that basis alone. Further, by reference to general concerns with respect to the father’s credit, the clear disclosure that Mr Proctor had not witnessed any assault and the consistency and plausibility of Ms Proctor’s denials, I do not accept that the photographs depict injuries occasioned to X by the mother.
163. None of the additional evidence suggested or identified by Mr Proctor has been called, save Ms P’s Affidavit. A Browne & Dunn inference, adverse to Mr Proctor, is available and will be drawn as a consequence of Mr Proctor’s failure to call the evidence he identifies as available such that I do not accept that such evidence would assist Mr Proctor’s case and that it may well assist Ms Proctor’s case.
164. Mr Proctor’s evidence, with respect to the significant issues of family violence and suggested abuse, is typified by two things:
     1. Firstly, the absence of any specific detail. Mr Proctor’s case is, as the late Judicial Registrar Knibbs often opined, “long on allegation, short on proof”. On the one occasion that Mr Proctor produced specific evidence, the video suggested to depict Ms Proctor verbally and physically abusing him and the 4 children, it showed nothing of the sort and directly contradicted Mr Proctor’s assertion. The video (Exhibit ICL2 – which I will discuss separately) depicted Mr Proctor and the two adult children baiting, goading and abusing Ms Proctor, to adopt the description of the video advanced by Counsel for Ms Proctor and which I accept as accurate, “like a group of school yard bullies” or perhaps, equally accurately, like 3 stray dogs attacking an injured goat. Mr Proctor was the aggressor and, contrary to the evidence of his daughter Ms P as to Mr Proctor’s role in such circumstances, rather than seeking to calm or diffuse the situation, he escalated and continued it;
     2. Secondly, the absence of any suggested observation by Mr Proctor of any physical assault by Ms Proctor upon any of the four children.
165. The above matters are of some moment. It is with reference to these two considerations that I have laboured upon the rules of evidence discussed above. Mr Proctor has not introduced any evidence in admissible form, within his own sworn evidence, which would warrant, establish or safely permit a finding of unacceptable risk.
166. Mr Proctor’s case is, as outlined above, that all four children are frightened of their mother. There is nothing within Mr Proctor’s evidence that would allow me to make such a finding. Indeed, such a finding would be entirely contrary to the weight of evidence in these proceedings, particularly that produced from independent sources and that reported of Y in the Family Report.
167. Mr Proctor’s evidence is also somewhat typified by use of absolute language and use of such language in a fashion to claim all credit for himself and impose upon or attribute sloth to Ms Proctor.
168. At the commencement of his cross-examination Mr Proctor sought to lead evidence to “correct mistakes” in his Affidavit. Mr Proctor referred to a significant number of the paragraphs of his Affidavit where absolute language had been used by him and which predominantly denied any contribution by Ms Proctor to either the children’s care or to the running of the home in which these parents and their children lived from time to time.
169. Such absolute denial of contribution by Ms Proctor (in terms such as “she never did…”) was corrected by statements such as:
     1. Paragraph 70 – “she was contributing. I can’t say how much. It was dependent upon Centrelink. Say 50-50”;
     2. Paragraph 113 – “she did contribute to the bills. This Affidavit was prepared by a retired solicitor. I just went in and signed it. I didn’t really read it. She did contribute but not as much me”;
     100. Paragraph 66 – “she did pay some expenses, maybe a third”;
     4. Paragraph 193 – “take that out. She did do some work”;
     5. Paragraph 221 – “she did do some renovations but it was to repair damage she caused. I refused to repair the damage”;
     6. Paragraph 231 – “she did things for the children but she did them negligently”.
170. The above portions of Mr Proctor’s evidence are intended to be illustrative. The transcript would reveal the totality of Mr Proctor’s “corrections”. All were somewhat pejorative and, I am satisfied, intended by Mr Proctor to protect himself from the difficulty that would arise from such absolute language as “never” and “always” and how easy they would be to disapprove.
171. Any concession made by Mr Proctor with respect to Ms Proctor’s contribution, to the children or to the home, was somewhat begrudging and generally tempered with or as the basis for criticism (such as the above statement that Ms Proctor did involve herself with the children but was “negligent” in their care).
172. During his cross-examination Mr Proctor proved a poor historian. When challenged with respect to his own behaviour he would either respond with a question or would take the opportunity to make an unresponsive criticism of Ms Proctor. When criticised and faced with evidence that would establish the criticism, Mr Proctor would respond by justifying his actions (for example, not sending the children to school on a Friday) as protective or responsive to the children’s needs.
173. The cross-examination of Mr Proctor commenced with the arrangements that have applied for the children’s time with their mother since the proceedings had been adjourned part heard. Mr Proctor readily conceded that the children had not spent any weekend time with their mother during school terms, notwithstanding the existence of Orders which provide for the children to be with their mother each weekend during school terms. Mr Proctor distanced himself from these arrangements and on the basis that the children were to be collected from their school by the mother and thus he had done all that was required of him by having told the children “you are free to go with your mother”.
174. Curiously, the children had attended block periods of time with their mother during the Christmas school holiday period and without apparent difficulty. Complaint was raised by Mr Proctor, however, that following these periods the children had expressed reluctance to return to their mother and on the basis of “what she did to them”.
175. Mr Proctor could not offer any detail as to what this might have been. Ms P suggested that the basis was an absence of food and activities, criticisms previously raised and criticisms, interestingly, denied by the youngest child Y.^[70]
176. The most substantial criticism offered by Mr Proctor, regarding the children’s time with their mother, a criticism joined in by the adult child Ms P, was the mother’s lack of provision – an absence of food within the home and an absence of stimulating activities or items purchased for the children. Beyond the suggestion of name-calling, Mr Proctor could not point to any behaviour towards the children by Ms Proctor which would be a basis for their non-attendance with their mother between November 2015 and the present.
177. When it was suggested to Mr Proctor that he had some role to play in the children not spending time with their mother his evidence, consistent with that put by him during his closing submissions, was to the effect, “the children are welcome to their mother. What happens between the mother and the children is up to them. It has nothing to do with me. I tell them to go”.
178. The only clear example given by Mr Proctor of the efforts made by him to encourage the children’s relationship with the mother was his suggestion that he would “tell them to go”. Ms P’s evidence on the point was more diluted, suggesting that Mr Proctor tells Y and X “you can go if you want” or words to that effect.^[71]
179. The present Orders providing for the mother’s time require the mother to collect the children from their school. The father is restrained from being present. As a consequence, Mr Proctor asserts that any failure by the children to leave the school with the mother is unconnected with him. I do not accept that proposition.
180. Mr Proctor’s influence over these children, especially X, is best demonstrated by events that occurred at X’s school one afternoon when a 3 hour standoff between X and the mother occurred, also involving the school Principal and other staff and the Police.^[72] Ms Proctor attended and for 3 hours subsequently the child refused to leave with her. X eventually did leave with his mother and then spent the weekend with the mother without complaint.
181. Similarly, on 16 January 2015^[73] X spoke with his father by telephone (whilst secreted in a public toilet) and then left the mother to be collected by the father, waiting a short distance away. Mr Proctor initially denied speaking with the child, although he could not explain how the child then came into his care if he had not spoken with him.
182. Mr Proctor then conceded that he had spoken to X but only after X had left the mother. Only when confronted with the phone records which clearly demonstrated that he had spoken to the child prior to the child leaving the mother’s care was the concession made by Mr Proctor that it was so. The event and Mr Proctor’s lack of candour in his responses during cross-examination do Mr Proctor no credit.
183. Mr Proctor on this occasion and, I am satisfied, others was prepared to give false evidence when he felt that he could not be challenged. When challenged with evidence which was clearly contrary to his own concession would then, and only then, be made.
184. The above events and Mr Proctor’s unsatisfactory evidence with respect to them cause me to both reject Mr Proctor’s evidence that he desires that the children have a relationship with their mother and that he supports and encourages that relationship. I am satisfied that I can and should accept the mother’s contention that the father actively undermines her relationship and actively interferes in the children’s relationships with her.
185. Mr Proctor’s attitude towards Ms Proctor was somewhat tellingly revealed when he was asked, somewhat benignly, to confirm the parties’ date of marriage. Rather than simply accepting the date which had been put to him Mr Proctor’s response was “it’s a fact I don’t want to recall in my life”.
186. When it was put to Mr Proctor that he had perpetrated family violence towards Ms Proctor his response was direct and immediate – “yes in defence… Whenever she instigated, provoked or escalated violence”. Mr Proctor conceded that he had struck Ms Proctor and suggested that this was “whenever she started the fight”.
187. Mr Proctor’s ardent adherence to his having been the victim of family violence throughout the relationship and having never perpetrated family violence upon Ms Proctor carried through to the suggested reason for the sale of the property in which the parties were both jointly living in 2014.
188. Mr Proctor insisted that he had determined to sell the home at that time so that he and the children might escape “domestic violence”. That assertion does not sit comfortably with the objective evidence available in the case, including that tendered by Mr Proctor and comprising the various documents (Exhibit R6) regarding the mortgagee taking action to obtain possession of the property.
189. Mr Proctor’s evidence also suggested, perhaps consistent with his erroneous references to “cultural imperialism” suggested to be constituted by the unnecessary and unwelcome intrusion into his family affairs, that he believed that Ms Proctor had been “led astray” (to paraphrase Mr Proctor’s evidence rather than to quote him) by “external forces and influences”. These would appear to have commenced with Ms Proctor’s father^[74] and to have continued through to the present with the assistance provided to Ms Proctor by domestic violence counselling services and support groups being labelled by Mr Proctor as interference in his family and demonstrative of those unnamed persons instructing and guiding Ms Proctor as though she were an automaton.
190. Mr Proctor was unable to make concessions when faced with irresistible and overwhelming proof (such as the payment of certain expenses, including the children’s after-school fees or the phone records) or when faced with such proof would concede but, again, on the basis of apportioning blame for his lack of involvement or inaccuracy in prior evidence to Ms Proctor and her action or chicanery.
191. A significant difficulty for Mr Proctor is his inability to make any concession regarding his perpetration of family violence against Ms Proctor as demonstrated by Police records and, in particular, records of his pleas of guilty with respect to charges preferred against him. This was in contradistinction to Ms Proctor’s concession that she had, in fact, been convicted and that she had, on those occasions which resulted in conviction, perpetrated physical violence against Mr Proctor.
192. Mr Proctor’s denial of family violence in those circumstances is, I am satisfied, disingenuous and disadvantageous to his credit.
193. With respect to financial issues Mr Proctor’s evidence was entirely unsatisfactory. During his cross-examination it became clear that he had provided nothing approaching adequate disclosure and that substantial rafts of documents, readily available and in the possession, custody or control of Mr Proctor, had not been produced. This, significantly, included documents:
     1. That would have corroborated Mr Proctor’s evidence and the absence of which irresistibly lead to an adverse inference against acceptance of Mr Proctor’s evidence;
     2. With respect to the sale of the Property C home and the receipt by Mr Proctor of proceeds of sale and the utilisation by him of those monies;
     100. With respect to the earlier sale of a property at (omitted) and the expenditure of funds received (at paragraph 119 of his Affidavit 4 June 2014 Mr Proctor simply refers to the sale and having spent the money on travel, bills and living expenses).
194. Mr Proctor is clearly aware of how to obtain documents. When he felt that documents would assist him he issued subpoena to obtain documents, filed the requisite Notice to inspect and inspected documents which he then tendered.^[75]
195. A significant issue in the financial aspect of the case is the plea by Mr Proctor that various debts are outstanding and payable by him.^[76] There is no evidence to establish the existence of those debts, save for a higher education contribution debt and, in the case of that debt, the material available and tendered clearly establishes that the debt is not immediately payable. I will deal with the evidence in relation to those debts separately and as part of a consideration of the Exhibits.
196. The greater difficulty facing Mr Proctor, as regards the outstanding debts he alleges, is the internal inconsistency of his evidence upon the point.
197. Upon sale of the Property C home Mr Proctor received the majority of the nett proceeds after payment of the mortgage and council and water rates.^[77] Mr Proctor asserts that he used these funds to pay the various debts and living expenses.^[78] There is significant coincidence between the debts alleged to have been paid out from retained funds and the debts alleged to remain outstanding.
198. Having regard to the above matters I do not accept Mr Proctor as a witness of truth.
199. Ms P also gave evidence. The evidence of Ms P is somewhat pivotal to Mr Proctor’s case. Ms P alleges, as does Mr Proctor, that she was beaten and ill-treated by her mother from an early age. Ms P is also the only witness who gives any direct evidence of observation of ill treatment of the child X.
200. I am particularly troubled by Ms P’s evidence. I do not accept her as a witness of truth.
201. Ms P’s demeanour in the witness box was highly unusual. I accept that for a child to be giving evidence in litigation between her parents that it would be distressing. However, to the extent that Ms P appeared to be distressed her responses in the witness box could not be suggested to arise from the above consideration.
202. Upon entering the witness box, and throughout her time in the witness box, Ms P appeared “downtrodden”. She could not make eye contact with anyone in the room and appeared more distressed when questioned by her father than by anyone else.
203. Ms P’s evidence was permeated by the elevation of her father to a position whereby she could neither see nor concede any wrong done by him at any time. The mother, on the other hand, could not be seen to have done any good at any time.
204. When confronted with the violence between her parents she denied that her father had played any role that instigated or contributed to events and that he was an entirely wronged party. Ms P went so far as to suggest, “it would start off as that woman [Ms Proctor] picking a fight with one of us and in order to calm her and restore peace dad would come in. Dad wouldn’t start anything. Dad would see us upset and couldn’t stand to bear that”.
205. Ms P had no good words for her mother at all. She has nothing to do with her mother and made clear that she does not desire to do so in the future.
206. Concerningly, Ms P was clear that she does not support her younger siblings, the children the subject of these proceedings, having a relationship with their mother and does not and will not do anything to support that relationship. That evidence is all the more concerning in light of Ms P’s evidence:
     1. That she attends to the majority of care for the two children, including taking them to and from school, cooking them meals and assisting them generally within the household. She went so far as to indicate that she has been looking after them “for many years, most of the time”. This evidence was given in the context of being critical of Ms Proctor for not meeting the children’s needs and oblivious to the obvious corollary that Mr Proctor was not involved in the children’s care either, notwithstanding his evidence to the contrary that he had attended to all, or after his “correction” of his evidence, the majority of the children’s care; and
     2. In response to a question put in cross-examination that the two younger children had wanted to go and spend time with their mother at Christmas and Ms P’s immediate response, “that’s changing”.
207. The last piece of evidence by Ms P might be interpreted in a number of ways both positive and negative. On the one hand, it may be that the children’s views are organically changing as a consequence of their own lived experience. However, I am satisfied that the preferred interpretation is that Ms P, in making this comment, is, in fact, communicating that the children’s views are changing and in response to the negative attitudes expressed towards Ms Proctor, if not the direct actions, words and deeds, of Ms P her sibling Mr R and her father.
208. Perhaps the most telling moment of Ms P’s cross-examination was her look of surprise when told that her father had made a video of an argument within the home. Prior to the existence of the video being revealed Ms P had been asked whether she had ever called her mother names. She had denied that it was so. Ms P had been asked whether she had ever yelled at her father to call the Police and have her mother thrown out of the home which, again, was denied. Ms P was asked whether she had ever joined in with her father in verbally attacking her mother. This was denied.
209. The video, Exhibit ICL2 and which I will deal with separately, clearly depicted all of the above actions. When confronted with this reality the best that Ms P could manage in response was “even if it did happen it’s after years of torture and pain she put us through”. The video, if nothing else, depicted Ms P as an aggressive predator and co-conspirator with her father against her mother rather than the meek, much wronged young woman she has painted herself as.
210. Similarly, Ms P was unable to concede that her father had, at any point in time, perpetrated violence against Ms Proctor. This was so notwithstanding the convictions recorded with respect to Mr Proctor’s behaviour and arising from his pleas of guilty to Police facts in evidence before the Court.
211. When it was put to Ms P that her father had been convicted of assaults upon her mother, Ms P was somewhat incredulous and protective of her father suggesting that if this had occurred it was because he had been unfairly and improperly convicted (notwithstanding his pleas of guilty).
212. Finally, Ms P’s evidence can be categorised as wholly inconsistent with her father’s. Mr Proctor pointed out that it would be an enhancement of his credibility that there would be “differences” between his evidence and that of his witness. That is so.
213. Ms P’s evidence does not involve “difference” as much as direct contradiction (especially as regards care arrangements within the home wherein it would seem, and as the Independent Children’s Lawyer adopted in submissions, Ms P is the primary provider of care to the children the subject of these proceedings, her younger siblings).
214. Ms P’s evidence was also, in many important respects, completely absence evidence which Mr Proctor had suggested she would give and which would corroborate his evidence particularly with respect to financial issues wherein Mr Proctor alleges that Ms P has loaned him, whether directly or through making mortgage payments and other debt repayments on his behalf, a sum of $12,500 – no mention is made of this or any comment upon the topic at all by Ms P. Ms P has certainly referred to “contributing to the bills”,^[79] but does not suggest any intent or expectation of repayment to her such as to establish a debt.
215. I accept neither Mr Proctor nor Ms P as witnesses of truth. This has significant ramifications to Mr Proctor’s case, particularly as the reliance placed by Mr Proctor upon Ms P’s “evidence” (comprising her Affidavit and that which is reported of her in the various business records comprising Exhibits), is substantial. I simply do not accept any of that evidence.