McTavish and Venz and Anor

[2011] FamCA 586

FAMILY COURT OF AUSTRALIA

MCTAVISH & VENZ & ANOR [2011] FamCA 586

FAMILY LAW – CHILDREN – Application of maternal grandmother – Where the child’s residence has fluctuated between the mother’s and maternal grandmother’s residence –Where the child’s truancy record is markedly worse when residing with the mother – Child to live with the mother until further order – Child to spend time with the maternal grandmother – Mother to co-operate with support program offered by the Department of Communities – Matter adjourned to a date not earlier than the end of the year to assess the mother’s management of the child’s truancy.

APPLICANT:

Ms McTavish

FIRST RESPONDENT: Ms Venz

SECOND RESPONDENT: Mr Venz

INDEPENDENT CHILDREN’S LAWYER: Ms Lyrene Wiid, Solicitor

FILE NUMBER: BRC 3122 of 2009

DATE DELIVERED: 18 July 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 18 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Maternal Grandmother appearing in person

COUNSEL FOR THE FIRST RESPONDENT: The First Respondent Mother appearing in person

COUNSEL FOR THE SECOND

RESPONDENT:

The Second Respondent appearing by telephone (not legally represented)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lyrene Wiid Lawyer & Migrant Agent

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The child, B, born … 1999, live with the Mother and spend time with the Maternal Grandmother at all reasonable times as agreed between the Mother, the Father and the Maternal Grandmother and in default of agreement not less than one half of each gazetted school holiday period.

1. The Mother will engage and co-operate with the Department of Communities (Child Safety Services) in a Support Service Case program offered to her and will cause the child to be made available and attend assessments, interviews and interventions with the departmental officers at all reasonable times the officers may request.  In particular, the Mother will use her best endeavours to ensure that the child attend any education program recommended to her by the Department.

1. The matter be adjourned for mention before the Honourable Justice Bell on a date to be fixed not earlier than 31 December 2011.

IT IS FURTHER ORDERED THAT:

1. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders

   create and the particulars of the consequences that may follow if a person

   contravenes these Orders, and details of who can assist parties to adjust to and

   comply with an order, are set out in the document entitled “Parenting orders –

   obligations, consequences and who can help”, a copy of which is annexed to these

   Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 3122 of 2009

Ms McTavish

Applicant

And

Ms Venz

First Respondent

Mr Venz
Second Respondent

REASONS FOR JUDGMENT

1. This is an application – I made it quite clear that I am giving my reasons some people might think very speedily, but I think it is absolutely essential that all the parties know what is going on as speedily as possible.  As they are aware, the most important person in this case is the child.  the child is one of four children to the respondents, Ms and Mr Venz.  They were born as follows:  C and D are twins born in 1995.  E was born in 1997, and the subject child, B, was born in 1999.  He is, therefore, 12 years of age.

2. I need not go into it in depth, in my opinion, the difficulties which both the applicant, who is the maternal grandmother, and the mother have had in relation to the child.  As far back as 2005, he was diagnosed as suffering from Asperger’s syndrome.  This in itself is a very, very difficult syndrome, particularly for the child but also in relation to the parents and anybody who has that child’s interests at heart.  He has had a chequered career in that he has been with his mother, he has been with his maternal grandmother, and he has gone back to his mother, but it is quite clear on the evidence, and I refer in particular to the reports of Mr F, two family reports and one initial assessment, that he has a close, warm and loving relationship with his mother and with his sisters.  He also has a close, loving and warm relationship with his grandmother.

3. The big problem here, as has fallen from McGregor of counsel on behalf of the independent children's lawyer, is that while he lives with his mother, he appears not to go to school.  He has been to school two days this year since the commencement of school.  On the other hand, when he resides – and he has resided with his grandmother for about 15 months – during that time, he had a good attendance record, and only four days were unexplained.  He seems to have done reasonably well at school and was quite happy there, as he says to Mr F.  He had friends and would not mind going back and seeing them. 

4. But the primary thing here is that there is a close, warm and loving relationship between himself and his sisters.  The problem may have been that for a period subsequent to the father’s incarceration, the mother was required to work.  Her hours initially were from 10.00 am until 4.00 pm and then at a later stage was 2.00 am in the morning until 10.00 am.  This necessitated the girls being responsible for making sure that the child attended school, and he refused to do so.   I would have thought it would be extremely difficult for the girls, who themselves had some difficulty with attending school, would emphasise the absolute importance of education for your future life. 

5. The whole thing revolves about this, as I understand – everything – the playing field is level, save can I be assured that the child will be encouraged to attend school by the mother?

RECORDED  :  NOT TRANSCRIBED

But if, in fact, it had only been that, I am afraid that the mother’s track record was not good.  There have been endeavours by the Department of Children’s Services or whatever it is called nowadays – it changes once every other week – to encourage him, and he was put into – what was it called – an Active Intervention Program in February of this year.  This is run by a department other than – or an organisation other than the department, and one of the terms of such intervention program is the department has no interest in the child.  As a result, the department closed their file in or about the month of February of this year, and little or nothing has been done by the department, because the child has been in this intervention care.  It was unsuccessful, has not been successful at all, regrettably.  That is the case, that it was unsuccessful.  He has not been to school since February of this year.  It is now, of course, July.  That concerns me. 

1. The grandmother has a good track record insofar as school is concerned, and he does attend.  As she readily concedes, if she could be confident that he would attend school other than for some matters concerning his behaviour, which may, of course, be part and parcel of the Asperger’s syndrome, she would have no objection to the child remaining with the mother. 

2. We fortunately have had the evidence of a Ms G, I think, was it not, a Ms G, an acting senior practitioner of the department at H Town, I think it was, at H Town, and she has given us evidence that in fact the department is now seized of the matter again - they are expressing concern about the boy.  She expressed concern that perhaps the schools have not done as much as they have.  She does not say that as a fact but in particular emphasis upon his Asperger’s, and she assured us that the department will now put the child and the family, the mother’s family – that includes the girls – in a system which is called a Support Service case.  This will enable the department to act in support of the children, all of them.  It will assist the mother in endeavouring to encourage particularly the child to attend school.  It will assist her relation to the management of his Asperger’s. 

3. I make it quite clear I do not think the mother has really done enough insofar as the Asperger’s is concerned.  She did have him diagnosed as far back as 2005 by a Dr I and since then, little or nothing, on the evidence before me.  There may be more that I do not know about.  It has not been done.  It is a very, very difficult condition for children.  It is very difficult for the parents too, as well, but she must do more.  She must accept the recommendation which I am sure will be coming through by this Support Service case, and she must do more.  She must learn about Asperger’s.  It is not for us to tell her where she should go.  She should be able to find out herself, look in the White Pages or even the Yellow Pages, and they are of great support, and I recommend most strongly that she do.  She will probably have to do a course herself.

4. One of the things that we know in this Court about Asperger’s and other autistic spectrum disorders is they need stability, they need definite limits put upon them.  They require that.  If they don’t get it, they will go bad.  Now, we do not want that to happen to the child.  Since the department has said that this service case lasts for about six months and since the mother has indicated that she wants a trial, she wants a chance to be able to get him to school, to be able to manage him properly, which she thinks would be about six months, I am persuaded to make such an order, and with great respect to Ms McTavish, she has done the right thing that she has virtually but not completely conceded, but she understands that if that happens, it is good.  But I make it quite clear to Ms Venz that if in fact he carries on the same way as he has been doing here without reasonable excuse, at the end of six months, he will move.  It is not a threat, it is a promise.  He will go to his grandmother. 

RECORDED  :  NOT TRANSCRIBED

1. Well, fortunately I am directed to look at all those matters of section 60CC.  I am only going to particularise one, and that is that I am satisfied that the psychological needs of the child require that he be in the possession of his mother and his sisters.   Mr F in particularly his final report has emphasised the close relationship between himself and his sisters and his mother, and he said the balance is this - if the child does not go to school, he goes to his grandmother.  If he goes to school, he can see no reason - that is, Mr F can see no reason why it should be changed.

2. So I am making it quite clear -

RECORDED  :  NOT TRANSCRIBED

that I have considered each of these requirements, but I unfortunately must refer to section 60CC(4) and which it is whether they have failed to take the opportunity to partake in decisions about the major long-term issues in relation to the child.  I think the mother has to a certain extent failed, and she has got to learn about that.  She has got to wake up to the fact that he is terribly important, his education is equally important, and I think as a result of what has happened today that she has seen, perhaps, the error of her ways, and she is going to be supported by the department.  As a result thereof, I will order that until further order - this is an interim order, because it will be coming back to me – that the child reside with her. 

1. I have had placed before me a draft order by the independent children's lawyer’s counsel, McGregor.  It has been considered by both the applicant and the female respondent, the mother, and Mr Venz, the male respondent, has been told about it.  He does not object to such order, and as I understand, Ms McTavish doesn’t either.

ORDER DELIVERED

1. Mindful as I am of Rosa, I have to consider whether there is a sufficient contact.  I am satisfied there is sufficient contact between the parents, because it is only the parents, and that is that Ms Venz has told me that the father sees the kiddies – not all of them, but most of them – at least every other week, which I think is quite wonderful, and also that it is reasonably practicable for the contact to take place.  The mother lives at –

RECORDED  :  NOT TRANSCRIBED

J Town, and the father is at -

RECORDED  :  NOT TRANSCRIBED

Prison K, and that is a very short distance between the two.  I order accordingly. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 18 July 2011.

Associate: 

Date:  18 July 2011