Video 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
The video exhibit destroyed by Mr Proctor
- At the conclusion of Mr Proctor’s cross-examination of Ms Proctor, late on day two of the hearing, Mr Proctor produced a video recorded and stored on his mobile phone. The video was called for and viewed in Court. The video was tendered by the Independent Children’s Lawyer, marked Exhibit ICL2.
- After the video had been played and viewed by all, Mr Proctor’s mobile phone was returned to him with a direction for him to produce a copy of the video so that it could be retained as an Exhibit.
- The video was suggested by Mr Proctor to have been made in 2013. The video depicts Mr and Ms Proctor at the Property C home. All four children are present. Ms Proctor is in the kitchen (a place which, on Mr Proctor’s evidence, Ms Proctor rarely visited). The eldest son Mr R is to the right of the camera and the eldest daughter Ms P to the left. The two children whose welfare is the subject of these proceedings, X and Y, are seated at a table in the foreground near their father.
- The video opens with Mr and Ms Proctor yelling at each other. Mr Proctor chuckles from time to time suggesting enjoyment and certainly not demonstrative of fear.
- X and Y are working on something at the table, presumably their homework, surrounded by this maelstrom of yelling. The two children do not look distraught or upset. They simply keep working and look very much resigned to the situation and “every day” in their demeanour.
- After a short time Ms P joins in by calling Ms Proctor a slut (something which, on her evidence, she denies ever doing). When this occurs, Y looks up smiling, perhaps amused perhaps doing what she can to cope with the situation. Their demeanour, again, otherwise suggests that the children are very familiar with such situations.
- Mr Proctor calls out “let’s split it up today. All the kids are here. Let’s discuss it”. This is certainly consistent with comments made by Mr Proctor throughout the proceedings and including in his closing submissions whereby Mr Proctor was and is of the view that the property division arrangements between the parties and all other matters affecting “the family” are matters in which all of the children should have a say. Mr Proctor had opened his submissions by suggesting that the proceeds of sale of the matrimonial home should be divided between the parties and the four children and only upon being advised that this was outside of the Court’s jurisdiction did Mr Proctor put a different proposal.
- Ms P again calls Ms Proctor a slut and Ms Proctor calls out to Mr Proctor “you talk to her. She is your daughter”. Rather than speaking to Ms P and admonishing her for her language towards her mother and in the presence of her younger siblings, he chuckles. By doing so he not only fails to intervene but conveys to the children his amusement and approval of Ms P’s actions towards the mother.
- One cannot help but gain the impression, at this point of the video, that Mr Proctor not only approves of Ms P’s behaviour and is amused by it but that he condones and encourages it.
- Certainly Ms P’s behaviour is entirely consistent with Ms Proctor’s evidence and entirely consistent with the behaviour Ms Proctor complains of having suffered at the hands of Mr Proctor since early in their relationship and throughout the lives of these children.
- Ms Proctor calls out “I’ve got two small children to bring up. The Court hasn’t decided yet. You just want the Centrelink money”. Ms Proctor refers to Ms P’s behaviour suggesting she may have learnt that behaviour from her father indicating “you call me slut, bitch”.
- At this point, as matters are becoming more heated and language more colourful, X and Y continue to sit at the table, not looking upset at all and looking, rather, as though they are very used to the behaviour if not resigned to it. It is not possible to tell if young Y’s smiles towards the camera are generated by nervousness or amusement. I am satisfied it is probably the former.
- The video gives the distinct impression that what is depicted is the everyday lives of these two young children.
- There is then a brief exchange between Mr and Ms Proctor:
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Ms Proctor
- “
she’s
- [Ms P]
insulting me
- ”.
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Mr Proctor
- “
you don’t call her names
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?
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Ms Proctor
- “
never. She calls me slut and bitch and you do nothing
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Mr Proctor
- “
you provoke her
- ”.
- There is then some discussion between Mr and Ms Proctor regarding Child Support and Centrelink obligations concluding with Mr Proctor’s retort, “I’ll write a letter to Centrelink, don’t you worry”. One of the Exhibits tendered in the proceedings[103] is a letter addressed to Centrelink written by Mr Proctor and stating:
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From 26 April 2014, the Proctor family except the natural mother Ms Proctor aka Ms Proctor, physically moved out of Property C, NSW. All four children…moved out…with their father… All children are living with me with Full time care and support financially, schooling and all their welfare is managed by me, the father.
- At this point in the video Y waves into the camera and peers into it smiling. This is somewhat at odds with Mr Proctor’s indication that the children were not aware that he was filming.
- Ms P then calls out “get the Police here”. Mr Proctor calls out to Ms P and Mr R “I want you right now please can you come here”. The two children appear in camera. Mr Proctor says “she is accusing me of fibbing and building up stories. You are my son come and tell me. Look at her, look at her. She wants to put me in jail for nothing”.
- At this point young Y chimes in saying to her mother, “you’re always wasting water”. It is noteworthy that this is a criticism that Ms P makes of her mother.
- Mr Proctor then calls “Ms P come here quickly. I want you to see this”. Ms P steps in and says “you’re the fucking man of the house you tell her to get out” and then to Ms Proctor “shut up. You have to fuck off from this house. You’re not my mother. You need to get out of this house”. Mr R joins in with “if there is a problem why aren’t you leaving”.
- Ms Proctor yells back at Mr R “I’m living here because it’s 75% mine”. Finally, Mr Proctor concludes the video stating “she wants to play a very big game this year”.
- There is some predictive wisdom in Mr Proctor’s comment. That is not to suggest that Ms Proctor has played or has sought to play a “very big game”. However, the attitude of the parties, more so Mr Proctor, suggests a lack of focus upon the children’s best interests than upon the resolution of their calamitous relationship.
- What the video clearly shows is that neither parent, fully aware of the children’s presence, seeks to resolve or diffuse the situation. Mr Proctor and Ms P very much “stoke the fire” throwing out comment and insult to “bait” Ms Proctor who responds. Rather than seeking to resolve or diffuse the situation, Mr Proctor very much seeks to escalate the situation and so as to involve all four children.
- The two elder children are involved by Mr Proctor very much as his co-conspirators so that the three (Mr Proctor and the two adult children) are accurately described by Counsel for Ms Proctor as “ganging up on Ms Proctor like schoolyard bullies”.
- The video, of course, is entirely contrary to that which Mr Proctor suggested it would show. True it is that it shows Ms Proctor yelling and arguing in front of X and Y. But the party commencing the dispute, filming it, continuing and escalating the tension and drama, is Mr Proctor.
- The video clearly depicts the influence that Mr Proctor has upon Ms P and Mr R. Mr Proctor calls out to them to come and they come. Without having to be told or encouraged they join in the very behaviour that Mr Proctor is engaged in.
- The video, shown before Ms P gave her oral testimony, is completely at odds with her evidence and cannot permit any finding other than a lack of credit with respect to her evidence.
- Ms P presents as a meek victim of her mother. In the video she is very much the aggressor. Ms P does not look fearful of her mother. The mother looks fearful of Ms P. Ms Proctor does not insult Ms P. It is quite the converse.
- Ms Proctor complains that Mr Proctor encourages Ms P in her behaviour towards her mother and it is very much borne out by the video. Mr Proctor, who depicts himself as a loving parent committed to a relationship between all four children and their mother, is shown to engage in behaviour entirely supportive of Ms P’s insults, abuse and berating of her mother and disrespectful of, if not destructive of, the mother’s relationship with Ms P.
- It is clear from the video that Mr Proctor has his “crew” about him. It is a three pronged attack upon Ms Proctor with Mr Proctor leading the frontal assault and each of Ms P and Mr R in a pincer movement from the flanks.
- What is remarkable and immediately noteworthy about the scenes depicted in the video is the calm “carry on” attitude of young X and Y. They are so unaffected by the screaming and abuse going on all around them that it is truly remarkable. It evokes images of children in war zones working in underground, bunkered schoolrooms whilst the shuddering blast of heavy munitions is heard above.
- The video gives a glimpse into the war zone in which these young children, indeed all four children, have lived their whole lives. It is made clear, graphically so, that conflict and “warring behaviour” between the parents and, as they have grown, Ms P and Mr R, joining in and being enlisted to Mr Proctor’s “militia”, has been circumjacent to these children’s lives. This conflict is all they have known.
- It would appear that the parties and their children continued to live together in this environment for up to 12 months after the video was made (assuming that it was made in the year alleged by Mr Proctor). The sale of the home and the physical separation of these parents occurred in or about April 2014.
- X and Y continued to be exposed to the same behaviour in the home for that period. I have no doubt that they have continued to be exposed to the same hostility and attitudes towards their mother since. That is behaviour which involves put down, insult and negativity towards Ms Proctor, the children’s mother. It is behaviour that has involved Mr Proctor’s domination of the two now adult children such that they do his bidding and do as they are told by him.
- The evidence would suggest that X has now been enlisted by Mr Proctor as a child soldier into his “militia”.
- The evidence suggests that Y has been actively recruited to Mr Proctor’s “militia” and that her ability to resist Mr Proctor’s call of duty, to serve the cause against “the enemy” Ms Proctor, is beginning to waiver.
- I have used this terminology of “militias” and “enemies” as it is a repetition or evocative of the language used by Mr Proctor at the (omitted) Police Station 9 January, 2015 and as these children have, I am satisfied, grown up in a “war zone” between their parents in which they have had strategic objectives of destruction of and victory over the other by severance of any bond or alliance between that parent and the children.
- Mr Proctor is far more culpable in this warfare. On one level, the mathematisation of culpability matters little in calculating the damage and injury to these children. However, it does assist in addressing future risk. It is Mr Proctor and his attitudes and behaviour that are the most significant, ongoing risk to these children and especially Y who is not yet fully enlisted.
- This is the environment in which these children presently live with their father. This is the environment which the father and the Independent Children’s Lawyer suggests both children should remain living in and with the certainty that this will involve no time, communication or relationship between the children and their mother. That this proposal would be made by Mr Proctor is entirely explicable.
- By the end of the evidence, and taking it in its entirety, I have real concerns as to whether Mr Proctor is able to differentiate the children’s needs and interests from his own or to recognise the children’s needs at all. Certainly, Ms P’s evidence would suggest that Mr Proctor has a somewhat tangential involvement in the children’s care, the majority of that care being left to Ms P.
- It is regrettable that the Independent Children’s Lawyer was not present to view Exhibit ICL2. If the Independent Children’s Lawyer had viewed the video and if they had compared that depicted in the video with Mr Proctor’s behaviour in presenting X and Y to the mother at (omitted) Police Station 9 January 2015, their position at the closure of the case, when it was submitted that both children should remain living with their father and that “they are too old, their views too fixed, the damage is done”, might have been different.
- The Independent Children’s Lawyer was not able to view the video as they were not present at Court, save for a few hours over the course of the four days. Counsel for the Independent Children’s Lawyer was present and did their best, without instructions, to conduct the case of the Independent Children’s Lawyer, although I am concerned that may well have been tainted, as regards a testing of the evidence, by the Independent Children’s Lawyer’s instructions, as conveyed in the Case Outline document filed, that:
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The ICL reserves her position as to the orders sought until the conclusion of the evidence, however has taken a preliminary view that the children should live with the father, and that he have sole parental responsibility.
- Of course the Independent Children’s Lawyer will now never view the video. Nor will any other person. Mr Proctor asserted, on day three of the hearing, that the video is “gone, destroyed”. It will never be known whether this is true or not. However, I have no doubt that Mr Proctor would have clearly recognised the damage to his case caused by the video that he produced believing that it would paint Ms Proctor in a bad light. Certainly, Ms Proctor is not “covered in glory” by her role in arguing voluminously in front of X and Y. However, the real aggressors in that circumstance were Mr Proctor and Ms P.
- I do not propose to take any action regarding Mr Proctor’s destruction of evidence. Thankfully, the video was played and one would hope portions of it, at least audio, might have been recorded by transcription. I have relied upon my notes made whilst viewing the video and including both verbatim transcription of parts of dialogue and contemporaneous notes as to actions, particularly those of X and Y.
- If there is anything to the idiom “a picture is worth 1000 words” then a video is perhaps worth a trillion. The insight given into the dynamics and functioning of this family, dysfunctional as it was and is, is vast.
- The video, in combination with the balance of the evidence discussed above, leaves me in no doubt and thus I find that these children, X and Y, have been exposed to a deliberate campaign of denigration and misinformation about their mother and that, with respect to the children’s relationship with their mother, Mr Proctor has, in all probability taken:
- No positive step to encourage, support or facilitate the children’s relationship with their mother; and
- Active steps to impede, undermine and damage the children’s relationship with their mother.