BURKE & BURKE

[2015] FCCA 1733

FEDERAL CIRCUIT COURT OF AUSTRALIA

BURKE & BURKE [2015] FCCA 1733

Catchwords:
FAMILY LAW – Whether child at psychological or emotional risk with mother.

Legislation:  

Family Law Act 1975 (Cth), ss.11F, 60CA, 60CC, 65DA, 65DAA

Applicant: MR BURKE

Respondent: MS BURKE

File Number: DGC 1028 of 2014

Judgment of: Judge Phipps

Hearing dates: 24 & 25 March 2015

Date of Last Submission: 25 March 2015

Delivered at: Morwell

Delivered on: 25 March 2015

REPRESENTATION

Counsel for the Applicant: Mr Pavone

Solicitors for the Applicant: Julie Taylor

Counsel for the Respondent: Ms Colla

Solicitors for the Respondent: Kennedy Partners

Counsel for the Independent Children’s Lawyer: Ms Stavrakakis

Solicitors for the Independent Children’s Lawyer: Victoria Legal Aid

ORDERS

1. The matter be adjourned for Mention on 24 June 2015 at 10.00am in the Federal Circuit Court of Australia at Dandenong.

2. There be interim children’s orders in terms of the Minute of Proposed Orders not by consent sealed and attached hereto (“the Minute”).

3. The Minute be placed upon the court file and marked “Exhibit A”.

4. There be interim property orders in terms of the Minute of Proposed Orders sealed and attached hereto (“the Minute”).

5. The Minute be placed upon the court file and marked “Exhibit B”.

IT IS DIRECTED:

1. The solicitors for the applicant husband do engross the Minute and provide an electronic duly certified copy in MS WORD format of the same via email (“the Copy”) to the registry of this court within 7 days.

2. Upon delivery of the Copy to the court, the within orders be extracted and the copy be attached thereto.

AND THE COURT NOTES:

1. Pursuant to ss.65DA(2) and 62 of the Family Law Act1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Burke & Burke is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MORWELL

DGC 1028 of 2014

MR BURKE

Applicant

And

MS BURKE

Respondent

REASONS FOR JUDGMENT

1. The application is concerned with three children but the significant issue concerns only one of them, V.  The three children are the younger three of the parties’ seven children.  The younger three are T, born (omitted) 1997, very close to 18, U, born (omitted) 1999, who has just turned 16 and V, born (omitted) 2002, who is 12, approaching 12 and a half.  The other four children are W, aged 26, X, 24, Y, 22 and Z, 21.

2. The four adult children are all residing independently.  T and V are living with the father and are not seeing their mother at all.  U is living with the mother and he is not seeing the father.  The Independent Children’s Lawyer’s proposal, which is also the proposal of the father, is to discharge all previous orders and to make an interim order in relation to the three younger children, that the father have sole parental responsibility, the father advise the mother in writing about decisions and major long term matters.

3. The proposal is that the child, T, spend time and communicate with the mother in accordance with her wishes and that V spend time and communicate with the mother in accordance with his wishes and that the mother, her agents and servants be restrained from spending time or communicating with U for a period of two months.  At the conclusion of the period of the two months, V spend time and communicate with the mother for a period of two hours each fortnight at Boyd House or by a professional supervisor and that the mother advise the father and the Independent Children’s Lawyer of the name and details of that professional supervisor.

4. The proposal is that the father arrange an appointment for U and V to attend upon a psychologist nominated by the Independent Children’s Lawyer to continue to facilitate their attendance with detail of how that is to take place.  There is a proposal for changeover and for an order that V continue to attend (omitted) Secondary College. 

5. There is a proposal for a restraint on the mother from aiding and abetting in any way the prevention of U living with his father, communicating with U other than set out in these orders, attending at schools with V or U, contacting or communicating with the schools, contacting U’s treating medical and health professionals and then this order:  in the event that U attempts to spend time or communicate with the mother not in accordance with these orders then the mother is to forthwith transport U to the father’s care and/or immediately notify the father of U’s contact or communication.

6. There is a proposal the father notify the mother of illnesses and hospitalisation and accidents and various injunctions about non-denigration, discussing the proceedings, permitting the children to have access to court documents and a provision for the Independent Children’s Lawyer to provide the orders to principals of schools, paediatrician and other health professionals.

7. The mother’s proposal is that if there is to be the final order for V to live with the father, there should be an order that V spend time with her on alternate weekends and possibly some intermediate time during the week.  If the order is to be made as proposed by the Independent Children’s Lawyer and the father, it should be an interim only.  She proposes that U should live with her, without any orders for time with the father.

8. The significant issue is whether U is at risk of emotional or psychological harm if he remains living with his mother and allied to that, as part of that or possibly as a separate issue is the extent to which U’s wishes should be followed.  U has expressed, in a letter to the Independent Children’s Lawyer, a wish that he wants to stay with his mother and he does not want to see his father.

9. The letter was emailed to the Independent Children’s Lawyer and is quite extensive.  There is extensive material and there have been extensive submissions made on behalf of both parties and for the Independent Children’s Lawyer.  I need to briefly give the background.  The parties married on (omitted) 1983, when they were in their early 20s.  The mother is from (country omitted), she met the father at a (omitted) in Australia.  They married in (country omitted); the mother came to Australia in (omitted) 1983 and has lived here since, except for a period when the parties and the children were back in (country omitted).

10. They separated on 22 January 2014.  The father was removed from the former matrimonial home in (omitted), (omitted), by police officers.  The wife alleges that there was extensive family violence and abuse by the husband.  The husband denies that that is the case but he says the marriage was an unhappy one; that the wife had a controlling nature and he remained in the marriage out of religious belief and for the sake of the children.

11. The mother obtained a family violence order, possibly upon the application of the police immediately after 14 January 2014, which initially named the three children.  It was the interim order.  When the order was made final in February 2014, it named the mother only.  On 2 February this year, the mother applied for a renewal of that family violence order and she applied to have the two sons, U and V, included on the family violence order.

12. It is common ground that the court records in the registry of the Latrobe Valley Magistrates Court record that the interim order was extended on 16 February 2015 and that the hearing of the application for a permanent extension or a final extension is on 20 May 2015.  The father’s legal representatives assert that the application for extension was first listed on 16 February, it was not reached on that day and it was therefore extended to 20 February. 

13. On 20 February, it was not extended any further, so what is alleged is that there is a gap in the records but the records of the court, which I need to act upon are that there is currently an interim intervention order that does not name the children.   Following the separation in January, the father did not see the three children for about three months, except for one occasion and on another occasion in April he saw T.

14. These proceedings were then commenced on 9 April 2014 by the husband. They have now generated three files of documents. The matter initially came before the court on 12 May 2014. There was an order for a s.11F appointment with a family consultant. That memorandum concludes that the children were not afraid of the mother, as alleged by the mother and then on 16 May 2014, orders were made by consent for the children to live with the mother and to spend time with the father until he secures independent accommodation each Sunday from 10.00am until 8.30pm and once he obtains accommodation, each alternate weekend, 3.00pm Friday till 9.00am Monday and some time in the term holidays.

15. There was an order for a psychiatric report by Dr A.  There was an order for a family report and the parties attended upon Ms D to prepare the family report on 4 July 2014.  On 25 September 2014 there was a further interim hearing, in the September Circuit at Morwell.  By that stage T was living with the father, she moved to live with the father on 1 August 2014 so after the interviews had taken place with Ms D but before the report had been prepared and T contacted Ms D to tell her that she had moved to live with the father.

16. The orders on 25 September 2014, which were contested, was an order that T live with the respondent, with the husband, U and V live with the wife and U and V spend time with the father each weekend from after school Friday till the start of school Monday each alternate week and from after school Thursday till the start of school Friday and then a week of the term holidays.  There was an order for U to consult with Ms M.

17. The matter then came before the court on 17 November 2014 and there was then an issue about schooling.  There was an order that U be enrolled in (omitted) Secondary College, to commence in year 2015 and V be enrolled at (omitted) High School, to commence in 2015.  At that point, V was attending (omitted) Primary School, U was not attending school; the mother’s case is that she was home schooling him.

18. All the children of the marriage have had extensive periods of home schooling.  The mother alleges it was by agreement; the father says that this was something brought about by the mother.  On 9 December 2014, V commenced living with the father.  The two boys, V and U together, had spent the weekends with their father on weekends commencing 25 July, 8 August, 27 August and 6 September. 2014.  Following that, U does not spend time with his father.  V continued to spend time with his father.

19. Prior to 9 December 2014, the father had contacted V about him attending the orientation day at (omitted) High School.  Part of the order in November was that the children each attend the relevant orientation days.  The mother was unaware that that had happened and V left the home shortly before 8.30am, met his father and the father took him to the orientation day, then went to McDonalds.  After that was finished and according to the father, V then said to him that he did not want to go back living with his mother and he has not seen his mother since then.

20. Two family reports have been prepared and there has been a report by Dr A.  So far as other professional material is concerned, there is an affidavit with a report by Dr J, dated 18 February 2015 and a letter and attachments by Dr C, a paediatrician.  There is a report by a psychologist, Ms M, of 18 September 2012.  U was referred to her by Dr C. 

21. The mother claims, in her material, that all the children fear the father and as I have said, in her application for an extension of the family violence intervention order, she claims that, “My sons do not want anything to do with the father”.  This is dated 2 February 2015, at a time when V had been living with his father since the 9 December 2014 and had not seen his mother since then. 

22. The Independent Children’s Lawyer received three emails from V in November.  He wanted to meet with the Independent Children’s Lawyer and in them, he says that the mother had told him that on the previous Monday, that is, on 17 November 2014, that the orders that the children spend time with their father had been discharged or dismissed.  That was clearly not true and so he wanted to meet with the Independent Children’s Lawyer to discuss that; clearly he wanted to continue seeing his father.  So far as T is concerned, she was interviewed on both occasions by Ms D.

23. In the first family report, T describes her mother as “mean and cruel”.  She said, “She has done nothing for me for the last few months.  She makes me feel bad for wanting something”.  Ms D records another occasion of T describing the mother as manipulative and cruel.  She said her mother has a close relationship with U and V; however she perceives that once the children start to assert themselves, she would not be able to cope with their independence.

24. She perceives the tension she experiences with her mother is because she asserts her independence and the mother cannot control her.  T was concerned that U and V were not attending school and she perceived that U had some health problems.  The second report is dated 23 February 2015.  When the interview took place on 13 January 2015, T was living with the father and not seeing the mother.  She said she had not got along with the mother for a long time and had not realised the extent to which her mother did not trust her.

25. She informed her mother she was moving out but did not expect the events that unfolded.  Her father waited outside in the car while she and her brother were taking things to her car and then the police came.  She said to Ms D, “I answered the door to cops, it happened suddenly and I thought she called the cops on me” and when the father arrived, the father had to leave.  It seems the mother called the police because she claimed the father was breaching the intervention order by being outside the home, which is technically correct.  When the alleged breach of intervention order was brought before the Latrobe Valley Magistrates Court, it was dismissed as trivial.

26. Ms D informed T that her mother was in the waiting area but T opted not to see her mother.  In the first report in July 2014, V expressed disappointment that his parents were not getting along and it was affecting his ability to spend time with his father.  His father had invited him and U to stay overnight for the upcoming weekend and he said he would like to stay the weekend with his father but was unsure if his mother would permit him.  He described positive relationships with both parents. 

27. He described his mother as “loving, helpful and sometimes strict” and his father as “loving, helpful and intelligent”.  In the second report, where the interview is in January this year, V said he commenced at (omitted) Primary School in August 2014.  He had some school absences due to illness.  He said these symptoms had passed; he suffered headaches and vomited once.  The symptoms had passed and he did not raise any issues about attendance at (omitted). 

28. Ms D asked him what had prompted him to leave his mother’s home.  He said he was getting increasingly upset with his mother for trying to prevent him and U from visiting his father or communicating with him by phone.  He said she would “completely prevent me from leaving to see Dad”.  He said his mother called the police twice, the first time against his father and T when T was moving out.  He had informed his mother that day that his father would be coming to assist T.

29. He perceived she does not respect his views or feelings and said, “Personally, I don’t want to live with her.  I don’t want an order that forces me to visit her every second weekend.  I want flexibility to visit her”.  He said he was not getting along with his mother before he moved to live with his father.  He said when his father phoned to speak to him and U, his mother would not pick up the phone.  On two occasions, he tried to pick up the phone but his mother was seated next to the phone and she moved the phone aside, another time she refused to hand him the phone.

30. He said that he “worries about U because he is not being encouraged to attend school”.  He said that while he was living with his mother, she was meant to take U to a psychologist.  On the morning of the appointment, he was getting ready for school and when U woke up, he heard his mother say to U that his colour looked pale and she was going to take him to hospital instead of the appointment.  He recalled that U would often still be in bed when he was leaving for school and he reported that many of his personal possessions are at his mother’s home which he could not retrieve.

31. In the first report Ms D describes U as an emotionally and physically frail 15 year old.  He presented as a child who was emotionally younger and less mature.  He said his health is poor and he gets exhausted easily since year seven, following the school camp.  Doctors were not able to work out what was wrong with him.  At this stage, this is in July 2014, U reported he sleeps a regular cycle and usually gets about 10 hours of sleep.  At least once a week, he sleeps extra hours.

32. When asked about what his parents were like when they separated, he said he was shocked when he did not see his father for three months.  When he learned that he was going to see his father again, he felt both strange and excited about seeing him.  He would like to spend more time with his father and wished to have overnight visits with him from Friday evening to Monday morning.

33. In the second report, he did not attend at the first interview. The mother, in a telephone conversation with Ms D said that U did not want to come because he was afraid that his father and his siblings would influence him against his mother.  Subsequently, another interview was organised between Ms D and U which took place on 6 February 2015.  Ms D described him as “frail, sullen and serious”.  He appeared hunched in his chair and had a hoodie covering his head, as if to hide himself from view.

34. Ms D says that at interview, U appeared to be completely aligned with his mother about his spend time arrangements.  He said, “I stopped seeing Dad before Christmas because I felt that I was being used by him against Mum”.  When asked to explain what “being used”, meant he said his father sending him emails attaching court documents, which he was not meant to be doing.  Ms D remarks he mirrored some of his mother’s statements of his father.

35. He had not had contact with his siblings because he perceives that they will turn him against his mother.  The father had sent U, by email, a copy of the orders of September 2014, had also sent him a copy of the letter from the Independent Children’s Lawyer about the appointments for the family report in January 2015.  He had also sent other emails referring to seeing him.  U said he had had a meeting with a staff member at the school, who suggested a plan that he could attend school for a few hours each day.

36. He told Ms D that, on a good day, he wakes up at 11am or later.  After waking, he has breakfast then rests again.  He does not engage in activities or study every day because he feels exhausted.  He sometimes does maths tests online.  For English, he reads a book and for Science, his mother gets experiments they can do together.  He does not maintain contact with T and V because “I am worried that Dad will get to me through them”.  He recalled that before V left his mother’s home, “he would not talk or communicate with me and he would not even say hello to me”.

37. He commented that “T and V are not themselves anymore and I do not want to be used by them”.  When asked why he was sad, he said, “Everyone hates Mum and Dad is trying to annihilate her”.  When asked if his father tries to communicate, he says he rings every Sunday and Wednesday.  He made a number of statements about his father and Ms D remarks that he appeared to be mirroring statements from his mother.

1. Ms D refers to a report by Dr C and noted that a comprehensive panel of blood tests done in March 2012 were all normal.  He had discussed them one by one with U and his mother.  Dr C could find no significant evidence of illness and encouraged U to do a bit more exercise and activities outside the house.  Ms D also refers to Ms M, the psychologist’s report.  The mother acknowledged to Ms M that U’s physical complaints are confined to the school week and not expressed on weekends or school holidays.

2. Ms D’s says in her recommendation that that U appears isolated and has lost all confidence in sharing his independent views, which were evident during the last report.  He appeared to mirror his mother’s complaints about the father and her views.  She said “U did not impress as a young person with the psychological maturity commensurate to his chronological age and did not have the capacity to offer views based on his needs”.  She expresses concern that whilst U remains in the care of his mother, he will not return to mainstream school which will have serious consequences for his social and academic development and future prospects.  She recommends that U live with his father and recommends that U not spend time with his mother on an unsupervised basis as she is likely to undermine plans for his resumption of mainstream school. 

3. The affidavit filed on behalf of the mother by Dr J says that U has been attending him since 28 May 2014.  The father and the Independent Children’s Lawyer were not aware of that until this affidavit was filed last week.  He concludes that he is suffering from chronic fatigue syndrome and he refers to a number of tests that he has done.

4. He says the findings are not consistent with a view that U’s ill health is all in the mind.  He can only presume that Dr C was unaware of the investigation findings when he concluded there was nothing physically wrong with U.  Dr C’s material said that U has longstanding sematic symptoms, not adequately explained.  Serial blood testing has revealed no sematic abnormality, his mother’s focus has been on the sematic symptoms, however continues to search for a medical diagnosis.

5. Dr J says U has lots of symptoms compatible with the diagnosis of chronic fatigue syndrome.  Dr J says he put it to both U and the mother that it was likely his symptoms are in fact related to longstanding domestic unhappiness and this needed to be discussed or he would remain a sick boy.  He examined him and could find no abnormality.  A comprehensive report by Ms M who did a number of tests says, “The present assessment confirms U’s presentation is consistent with a learning disability”.

6. Ms M says this:  “Furthermore, U’s elevated anxiety, withdrawn behaviour, psycho-sematic complaints and high absenteeism from school are indicative of a generalised anxiety disorder”.  She advises ongoing counselling and says “efforts to extend U’s attendance to full time enrolment at school should be undertaken, his absence is further challenging his social and academic development”.

7. I will not read out the letter that the Independent Children’s Lawyer received from U.  He concludes by saying this, “So with respect to your decisions, I refuse to live with Dad under any circumstances because I am scared of him.  I am concerned that as he has never been a good parent in my whole life, that he would continue with his anger after this case.  I have had peace and less stress since I have not been seeing Dad and I think I have a much better future living with Mum”.  Whether U prepared the email on his own, whether anybody helped him or whether someone else prepared it for him is not known at this stage.  He also says, “I have spoken out against Dad’s aggression and how he can manipulate and use people”. 

8. The issue of family violence is raised by the mother.  It is worth noting that two of the adult children, that is Z and Y, have filed affidavits in which they support the father’s view of their mother.  The mother sees X and W, so it seems there is an alignment of the adult children, two with the mother and two with the father.

9. What the mother alleges about U now and what he is saying is quite clearly inconsistent with what he said to Ms D in July last year.  There are good grounds, even at this interim stage, for concluding that the mother was attempting to keep V and U away from their father.  V said as much to the Independent Children’s Lawyer.  U, in July, had started seeing his father after the separation.  He clearly was unhappy about not seeing his father for three months.

10. He went and saw his father for some three or four visits on the weekends and then stopped.  He is emotionally immature and fragile, that is what Ms D says and that is consistent with what Ms M said back in 2012.  There is, even at this interim stage, quite good grounds for concluding that what U is saying is not his own view, that it is heavily influenced by his mother. 

11. In terms of the Family Law Act 1975 (Cth), the first issue, so far as this dispute is concerned, is the question of parental responsibility.

12. Section 65DA contains a presumption that it is in the best interests of children for parents to have equal shared parental responsibility. Equal shared parental responsibility means that parents are required to consult and make a genuine attempt to reach agreement on major long term matters, which include education, both current and future, major health matters, religion and cultural matters and any changes in residence which might make it more difficult for the child to spend time with another parent.

13. The presumption does not apply if there are reasonable grounds to believe there has been family violence or abuse of the children or if it is otherwise not in the best interests of the children that the presumption be applied.  One thing clear in this case is that the parents have no ability to communicate and reach agreement about major long term matters.  There are significant disputes in the past and present about major long term matters.  The issue about schooling had to be resolved by a contested hearing in November.

14. The mother was unrepresented on that occasion and she made no submissions about the schooling.  The only statement she made to the court was that she did not consent to the Court Jurisdiction, the proceedings were vexatious, that they should be struck out, that they should not proceed.  Her attitude was puzzling then but it may well be explained by an exhibit to the father’s affidavit.  This matter is fixed for final hearing but it is only an interim hearing at this point but both parties have filed trial affidavits and the father says that the mother, in 2012 or 2013, emailed to him a document described as the voice of the constitution.

15. It is a long and rambling document which refers to the Australian Constitution and the institution of the writ of habeas corpus and says that an order of a single Magistrate or judge is only valid if the parties consent to it.  That may be the explanation for what the mother is saying and it may be the explanation for her saying to V that the orders had been discharged and were no longer in place.  The mother does have some unusual views.

16. In the psychiatric report by Dr A, he found no symptoms of psychiatric illness with the mother but he did say that she seemed to have no insight into the fact that the marriage was coming to an end or the effect it had had on the children.  Apparently, she expressed surprise that her marriage had come to an end.  There are issues about the mother’s approach to the children and to life in general.  The father alleges that she has become part of a religious movement called “(omitted)” which has unusual views, he asserts.  The mother denies that that is the case.

17. There is the material from T, where she describes her mother as being manipulative.  The submission that has been put on behalf of the father and the Independent Children’s Lawyer that if the children are not doing what the mother wants, she cuts them off and that may well be what has happened in this case with U.  The father has long term mental health problems, after bullying at work; he suffered from depression which at one point was diagnosed as a personality disorder. There is a reference to post-traumatic disorder.

18. The father has had long term psychiatric treatment, both by therapy and with pharmaceuticals.  He is renting a three bedroom house, so that if U was to go to live with him, U would resume the living arrangements he had up until 9 December, which was sharing a room with V.  There are good grounds for saying that what U is saying is a consequence of what the mother has been saying to him.  U is saying he is afraid of his father but he was not saying that in July. 

19. The mother has asserted and still asserts that both U and V are afraid of the father, V clearly is not.  The parties do not have an ability to reach agreement about major matters. 

20. It is clear from the professional reports that U needs to be encouraged to attend school; even at this interim stage, I can infer that the mother has not been encouraging U to attend school. 

21. There was an order in November 2014 that he be enrolled at (omitted) Secondary College; the father did that.  There was an order that he attend the orientation days. The mother did not take him to see a teacher at the school until January.  There is V’s statement to Ms D that there was an occasion when U was supposed to be seeing a psychologist, and the mother said his colour did not look good and took him to see a doctor as well.  The paediatrician who has seen U on 10 occasions has not been able to find any physical symptoms and yet the mother continues to insist that there are physical symptoms.

22. The parties cannot agree on medical matters and cannot agree on schooling matters.  If they were in dispute, they would be back in court arguing about what might need to happen.  It is not in the children’s best interests that there be an order for equal shared parental responsibility. So far as V is concerned, it would have to be the father who has that responsibility and then whichever way I determine where U should be living, it would be that parent who would have to have the responsibility.

23. There will not be an order for equal shared parental responsibility which means that s.65DAA does not apply. I have to consider the child’s best interests, s.60CA. The best interests considerations are in s.60CC. The first of the primary considerations is the benefit to the child of a meaningful relationship with both parents. U does not have a relationship with his father at the moment and it is clear, even at an interim stage, that while he remains living with his mother, he will not have a relationship with his father.

24. The second of the primary considerations is relevant, that is the need to protect the children from the risk of harm, including psychological and emotional harm.  The professional material shows that U needs to be attending school, he needs to be encouraged to attend school, he needs to be encouraged to have social interaction with other people.  At the moment, a fair inference is that he is only seeing his mother and possibly other people who attend the house which may include X and W.

25. U is not seeing the siblings closest to him in age.  T above him and V below him in age.  He may be seeing little of other people attending the mother’s house because he spends much of his time in bed, up to 15 hours a day, he told Ms D.  Unless something can be done about his current situation, unless he can be encouraged to attend school and start attending school, possibly on a part time basis initially but then full time school, he will lack education, he will lack social contact and he will simply lack an ability to live within society.

26. The material does not show that the mother is encouraging all these things to happen.  It appears she is discouraging them.  V, who would seem to have been at risk of a similar thing happening to him is now attending school full time and enjoying school.  T, who had been home schooled at times, had commenced study at the (omitted) in  Melbourne and is doing year 12 this year. 

27. Ms Colla for the mother says that there are many matters in dispute and they should await a final hearing.  I fear that if it does await a final hearing later in this year and U’s position has not changed, it may be too late.  It may be too late now but if U remains living with his mother, I am not at all confident, indeed I do not consider that the mother would make any real attempts to have U attend school and to commence some sort of social interaction and to have something approaching a normal life for a 16 year old.

28. That brings me to the additional considerations, the first of which is the views of the children.  Views of a 16 year old, a child who is 16, must be taken into account; in many cases, they would be decisive.  U’s views, are heavily influenced by his mother.  Ms D has concluded that.  Ms D has concluded the mother lacks insight into how she has been affecting all of the children.  The mother is convinced; it would seem that U has some sort of sematic illness.

29. Dr C concludes he has not and that therefore U needs psychological help.  Dr J seemed to assume that there had not been the normal testing done but it has.  Dr C’s material shows that is the case.  For those reasons, not a great deal of weight can be placed upon U’s views in determining what is in his best interests. 

30. The second of the additional considerations is the relationship of the child with each parent and other people.  I have already referred to what is happening about his relationship with his father.  He is not having a relationship with his siblings.  He had been living with T until 1 August 2014 and then with V until 9 December 2014 now he is not seeing them at all.  He is 16 so he is not seeing the two siblings closest to him in age and yet up until some point last year, he had a good relationship with them. 

31. The next consideration is the effect of any change.  It is possible U will not go to live with his father, so that there will be no change.  If he does go to live with his father, I do not see how things could get any worse with U.  They can only improve if he goes to live with his father.

32. The other thing which is relevant is the attitude to parenting.  The mother does not seem to appreciate how important it is that strenuous attempts need to be made to get U to school and get him out leading a normal life for a 16 year old.  It would seem, on the material I have before me, that she did nothing about following the orders in November last year, did nothing about getting him to school until late January this year.  That was a meeting with one of the teachers at the school or the principal, who suggested that he commence attending school one day a week.  That has not happened.  I appreciate that this is an interim hearing and that there are many contested matters but I am satisfied, on the basis of the best interest considerations, that U’s best interests will be served by him living with his father immediately.  It will mean that there will be a basis for him establishing a relationship with his father.

33. He will not see his mother for two months.  I am quite satisfied that what is proposed is needed.  He will not see his mother for two months but that is necessary to enable his relationship with his father to be established.  He will re-establish the relationship, hopefully, with T and V.  I am satisfied there is a much better chance that he will start attending school and that he will get the help he needs. 

34. So far as the other contested matter, which is whether there should be any specific orders made about V spending time with his mother, V seems to be quite mature and clear about what he wants.

35. He is 12 and a half.  He said at the moment, he does not want to see his mother and I am satisfied that is his view and that he has got sound grounds for that.  Ms D accepts that that is his view.  The other matter is that there will be some risk that his mother might attempt to turn him against his father. 

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  24 June 2015