Ackart and Beadle - [2009] FMCAfam 650

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ACKART & BEADLE

[2009] FMCAfam 650

FAMILY LAW – Parenting – competing proposals for the child to live with each parent – assessment of risk in each household.

Family Law Act 1975 ss.60B, 60CA, 60CC, 61DA

Applicant:

MS ACKART

Respondent:

MR BEADLE

File Number:

WOC 551 of 2007

Judgment of:

Jarrett FM

Hearing date:

4 May 2009

Date of Last Submission:

4 May 2009

Delivered at:

Wollongong

Delivered on:

7 May 2009

REPRESENTATION

Counsel for the Applicant:

Mr Maurice

Solicitors for the Applicant:

Williamson Isabella

Counsel for the Respondent:

Mr Moss

Solicitors for the Respondent:

Johnson Horsley Lawyers

ORDERS

That the parties have equal shared parental responsibility for long term decisions concerning the care, welfare and development of the child [X] born in 2001 (the child).
That the child live with the mother, commencing 5.00pm Friday 15 May 2009.
That the father spend time with the child at all times as may be agreed between the parties and failing agreement as follows:
(a)commencing Friday 22 May 2009, from after school Friday until 5.00pm Sunday for three (3) weekends out of every four (4) weekends;
(b)for one half of all NSW school holiday periods, with the child to spend time with the father for the first half of the holiday periods in even numbered years and for the second half of the holiday periods in odd numbered years;
(c)the child shall spend all other school holiday time with the mother;
(d)for the whole of the weekend in which Father’s Day falls and the time with the father on the following weekend shall be suspended.
That the child shall live with the mother for the whole of the weekend in which Mother’s Day falls.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
WOLLONGONG

WOC 551 of 2007

MS ACKART

Applicant

And

MR BEADLE

Respondent

REASONS FOR JUDGMENT

(As corrected)

This case concerns parenting orders for [X], who was born in 2001. He is now about eight and a half years of age.
His parents were in a relationship for some time. There is a dispute between them about the length of their relationship but it is unnecessary in this case to resolve that dispute. On Mr Beadle's case, the relationship lasted three years and spanned September, 1999 to September, 2002. On Ms Ackart's case it lasted about one year and spanned September, 2000 and November, 2001.
Currently, [X] lives most of his time with Mr Beadle at a locale know as [S]. He lives with Ms Ackart, as best as I can tell from the material, from after school Friday to 5 pm Sunday, twice every three weeks, although from time to time that time is shortened to 3.30 pm on a Sunday. Ms Ackart lives in [U], about a two hour drive from [S].
The current arrangements are embodied in interim orders made in the Local Court at Wollongong on 19 April 2007. Those orders also provide for Mr Beadle and Ms Ackart to have equal shared parental responsibility for [X]. There is no specific order for [X] to spend extended time with Ms Ackart during school holiday periods, although the evidence reveals that in the Christmas holiday period over 2007/2008 he spent five consecutive days with his mother.
The orders that I can make in respect of parenting issues in this case can only be orders that I consider are in [X]'s best interests. I am not concerned with the best interests of either of the parents, their wishes or desires. The law is very clear that I need to take into account the matters set out in s.60CC of the Family Law Act 1975 in determining what is in [X]'s best interests and as a necessary consequence of that exercise I need to decide the living arrangements for [X] and the incidence of parental responsibility for him. I do that against the general principles and objects set out in the Family Law Act 1975 Part VII, which includes that children are entitled to be parented by both parents and that they are entitled to a relationship with both parents.
I deal with the aspect of parental responsibility first. Neither party suggested that an order for equal shared parental responsibility was not appropriate. I was not addressed in any substantive way on this issue by either party but the conclusion I have come to is that such an order is appropriate and I ought to apply the presumption set out in s.61DA of the Act. Whether I apply the presumption or whether I arrive at the conclusion by an application of the best interests test, for want of a better shorthand description, I am satisfied that it is in [X]'s best interests that his parents have equal shared parental responsibility for him.
The indicators are that Mr Beadle and Ms Ackart have a reasonable level of communication now, although it has not been like that in the past. They are able to communicate about issues concerning their son. There is a level of cooperation between them that allows the current arrangements to work with some flexibility. That is an encouraging thing for [X]. Over time their relationship has improved and I am satisfied that it will probably continue to improve, despite any orders that I might make in these proceedings. An order for equal shared parental responsibility will serve [X]'s interest's well, no matter where he lives or spends his time.
As a consequence of making an order for equal shared parental responsibility, I am bound to consider the arrangements set out by the Family Law Act 1975 in s.65DAA(1) and s.65DAA(2). That is the prospect that [X] might spend equal time in each of his parent's households or, if not that, then substantial and significant time, as that phrase is defined in s.65DAA(3) of the Family Law Act 1975, with the parent with whom he does not ordinarily live.
Neither party pressed orders consistent with s.65DAA(1) or 65DAA(2). That is, I suspect, simply a matter of practicality in this case. There is such a geographical distance between the parties that an order for equal time would not work and an order for substantial and significant time, which would include in it non-weekend time, probably would not work either, although I was not specifically asked to consider that matter. I discount the possibility of making an order under s.65DAA(1) and s.65DAA(2), it not being practical in the circumstances. I would make this observation, however: There are echoes in the family report that significant time between [X] and both of his parents is called for in this case and if it were the case that they were able to live closer geographically, then perhaps a situation ought to be put in place which would see [X] spending pretty close to equal time in each household. As I say, that is impractical in the circumstances and so I pass from it.
I turn then to the question of what is in [X]'s best interests in terms of his living arrangements.
Neither part suggests that [X] will not benefit from a meaningful relationship with the other parent. That is to their credit because clearly on the evidence [X] has much to gain from a meaningful relationship with both his mother and his father.
The father's case is that there is really nothing on the evidence to support the notion that there is a need to protect [X] from physical or psychological harm by reason of being subjected to or exposed to abuse, neglect or family violence either in his household or that of the mothers.
The mother's case is slightly different, although it was probably not put as the primary string to her bow. She points out in her evidence that from time to time, particularly when the parties were together, that the father was violent towards her. There are some matters in the father's criminal history that tend towards consistency with her claims that he is a violent person but the issue of violence in so far as the mother's case is concerned was not strongly pressed. When one considers what occurred in October of 2005, that is the mother's decision to leave [X] in the care of the father for extended periods of time whilst she worked interstate, one might form the view that whilst there may have been violence in the relationship in the past, it was perhaps not as extensive or as significant as the mother suggests. No level of violence is acceptable, but there are questions of degree involved and I formed the view that the issue of violence was not a genuine concern for the mother insofar as the father’s care of [X] was concerned. I pass from that question merely noting the evidence that the mother has led in that respect.
There is some evidence before me about [X]'s wishes. His age, however, militates against giving his wishes any particularly significant weight. In the second of the family reports that have been prepared for my assistance in this matter, the report writer, Dr Vardanga, records:
If he could be granted three wishes, [X] stated that he wished his parents could be together but, "they broke up when I was a little boy." His second wish was to live with his father and he said that he would feel "sad" if this was not the case. I asked if he had spoken with either of his parents about this wish and he replied "No, I just keep it a secret." I asked why that was so and he said, "Because I just want to." I inquired whether he thought his parents would feel upset with him if they knew his wish and he said, "Yes, especially mum would be most upset."
That seems to be the extent of the evidence about [X]'s wishes although there is some evidence in the father's material, although not as direct as that to which I have just referred. The mother gives evidence that in the past [X] has presented her with challenging behaviour and has said to her at the conclusion of contact visits that he was not going back to see her. I record the wishes but, as I say, given [X]'s age they are not matters which attract significant weight and the family report writer did not suggest that they ought to.
It is clear from the professional evidence, that is, the evidence of the family report writer, that [X] has a very strong attachment with his father. The report writer, in paragraph 36 of the first report, says:
This assessment highlights that [X] perceives his father as a principle source of his stability and security and is settled in that environment. He nominated his father, his father's former partner and his infant half brother as the primary sources of his emotional nurturance and the person who he identifies with as his family. The reports from the school suggest that [X] is achieving at a satisfactory standard and they do not concur with

Ms Ackart's concerns that [X] is delayed in his academic development. The observations of [X] with each of his parents also suggests that his father has the better child management skills and that [X] is more respectful and contained in his interaction with his father. The acting out behaviour reported by Ms Ackart was evident in [X]'s interaction with her on the day of the assessment. She projects the blame for this behaviour onto Mr Beadle's influence on [X], however, it is highly likely that [X]'s behaviour is an expression of anger towards Ms Ackart for her abandonment and lack of emotional availability to him.
It is not suggested in the material that [X] does not have a relationship with his mother but rather that his stronger relationship and his sense of security, both physical and emotional, seems to rest with his father. The second family report at paragraph 28 comes to this conclusion about this issue:
Highly significant in this matter is the nature of [X]'s attachment and the relationship with his father. This is not disputed by any of the parties and this assessment bears out that [X]'s primary source of emotional nurturance is his father. It would be a significant loss for [X] to be removed from that environment and it may result in considerable disruptive behaviour in his mother's household should there be a change in the current living arrangements. If the Court considers that there are limitations in the living environment Mr Beadle provides, and this assessment has been unable to canvass limitations entirely given the brevity of time, it would be advisable that support structures be put in place for Mr Beadle to work on his parenting and anger management stills before a change of living arrangements is considered.
That paragraph also deals with the next of the relevant factors in this case, namely the effect of changing the present arrangements or [X]'s circumstances, including the likely effect on him of any separation from either of his parents. It is clear enough from Dr Vardanga's evidence, which was not challenged in cross-examination, that [X] is enmeshed with his father. I do not use that word in any technical sense but rather merely as a descriptor of the strength of the relationship, and that there is likely to be some difficulty if he was asked to live with his mother. There is nothing in her evidence that suggests that she has a plan to deal with such difficult behaviour if it arises if [X] was to live with her. Her most recent affidavit simply states that [X]'s behaviour with her has improved considerably and he shows none of the difficult behaviours that he has exhibited in the past. Nonetheless, it is important to note that there may well be those difficulties for [X] if I made a decision that he should live with his mother after this trial.
What is clear also from the passage from the first family report to which I have just referred (and the passages preceding it in the report) is that if I was to decide that [X] should remain living with his father, there may be much work to be done by Mr Beadle in respect of his parenting and anger management skills. There is the recommendation by the report writer that support structures, she describes them as, be put in place to assist Mr Beadle in that regard.
That comment really leads into the balance of the relevant factors in this case, namely the parent's capacity to meet [X]'s needs, their attitude towards him and their responsibilities of parenthood and their ability to properly focus on what is in [X]'s best interests.
In that regard, the mother's case is really fourfold. The first is that she says there are real issues in the father's household concerning drugs and alcohol and that those matters present a risk for [X]. Secondly, she says that his lifestyle and physical surroundings are not conducive to proper care for [X]. Thirdly, there are considerable difficulties with [X]’s education and the father is unable to correct them. Fourthly, generally speaking, the father presents as a poor role model for their son.
The father's case is that essentially the mother's lifestyle and work commitments are inappropriate, present a poor role model for [X] and, I think he argues, present a risk for him in the longer term. He also complains that the mother must still be using illicit drugs and perhaps alcohol and that also presents a risk to [X] because it would necessarily impair her capacity to meet his needs.
I turn firstly to the mother's case and the case against the father in respect of the father's drug use. The parties agree that they have both used illicit substances in the past, both cannabis and methyl amphetamine. There may have been other drugs. In his most recent affidavit material, filed in reply to the mother's material, the father disavows any ongoing involvement with drugs. Indeed he says that since 2007 he has turned his life around, eschews any involvement with drugs at all and ensures that [X] is not exposed to any, to use his words, “unhealthy and dangerous lifestyle”.
The difficulty with the father's case, however, is that it is not consistent with the evidence. The evidence is that in April, 2007 when the Local Court pronounced interim parenting orders, it also pronounced an order that required the parties to submit to random drug screens at the request of the other party. The mother's evidence is, and this evidence is not challenged, that on two occasions since the making of those orders she asked the father to perform a random drug test. On each occasion he failed to comply with the request in accordance with the terms of the orders. That, of itself, is significant. In both respects, he also failed the test because there were indications of illicit drug use in the test results.
In the first test it was revealed that his blood contained cannabanoids and also opiates in the form of codeine. The second test revealed that his bloodstream contained benzodiazepines. He says in his affidavit filed in reply that the first test was carried out early in 2007 before he had made his decision to quit his drug lifestyle. But in my view that cannot be true because the relevant test was carried out at the end of 2007, not the beginning. The second test was carried out in 2008 and the father suggests that his research indicates that benzodiazepines can enter a person's bloodstream through the consumption of everyday foods. But there was no medical evidence called by him in this case that would suggest that that is, in fact, the explanation for the positive test.
There is also the evidence of that the father was associated with a person who took an amount of marijuana or cannabis to [X]'s school, where it was either placed or dropped. The offending material was later found where the father and his friend had been sitting. That tends to indicate that the father continued at the relevant time to associate with persons who were part of the drug culture.
The father tendered, at the commencement of this hearing, a certificate indicating a clean urine screen for drugs but I place little weight on that because it is not a random test. It was a test performed for the purposes of these proceedings shortly before the trial. Its probative value is minor.
In so far as the allegations made by the father against the mother are concerned about drugs, again I repeat there is a concession by both of the parties that they have used drugs in the past. At the commencement of the father's cross-examination, the mother's counsel tendered a photograph of the father using drugs but it soon became apparent when the mother gave evidence that she had supplied the drugs to him and that she was participating in their use at the same time. I am not sure what to make of that evidence other than that the parties used illicit drugs at some time in the past. The issue for my consideration is whether that behaviour is ongoing. I am not satisfied of the father's denials about ongoing drug use in this case. I think it more likely than not that he continues to use illicit substances.
I am not, however, so satisfied about the mother. The primary reason I come to that conclusion is the father's own conduct. Just as the mother had the opportunity to seek from the father random drug screens to deal with this issue of illicit drug taking, so too the father had the opportunity to seek such tests to be performed by the mother. The mother gives evidence, which is not challenged, that he never did so. So, since April of 2007, for a period of time over which these allegations have been alive, the father has not requested the mother to undertake any tests whatsoever. There are two possibilities in respect of that. The first is that she does not use illicit substances and he knows that to be so, in which case there would be no point requesting a test. The alternative is that, as the mother says, her past use was at a relatively low level on an infrequent basis and so the father is not genuinely concerned about it. Either possibility demonstrates that the issue is, in so far as the mother is concerned, a red herring.
The next issue raised by the mother is the father's capacity to ensure or meet [X]'s educational needs. I have in evidence before me [X]'s semester one and semester two report cards for last year, together with attendance reports for the years 2007 and 2008.

The issue concerning his schooling falls into two phases. The first is his attendance at school, the second is his performance. They are, I suppose, necessarily connected, but I will deal with them separately.
In so far as the attendance is concerned, the evidence reveals that in 2007 [X] missed a total of 53 days of school. 30 of those 53 days occurred in the first term. The second term there was improvement. He only missed four days. The third term there were eight days missed and in fourth term 11 days missed. In 2008, it was not much better. In the first term he missed 22 days; in the second term eight days; in the third term four days; and in the fourth term nine days, a total of 43 days for 2008.
In addition to that, the evidence given by the father in cross-examination reveals that in 2008, [X] was regularly and frequently late for school. There were school records put to him, which he accepted, generally speaking, which indicated that [X] was an habitual offender in terms of punctuality and more often than not the excuse given for his failure to be on time was that either he or his father had slept in. The father gave evidence that on one occasion the reason [X] did not attend at school on time was that he had not finished watching “his cartoons”. That is very concerning evidence.
[X]'s school was so concerned about his poor attendance in 2008 that the principal of the school reported the matter to the Department of Community Services. Exhibit 8 is a bundle of documents leading to a notification to the Department, and which includes the notification by the school to the Department.
The first relevant document in exhibit 8, which is a bundle of documents, is a facsimile letter from DOCS to Ms M (the principal of the relevant school) at [S] Public School. It confirms that there was contact with DOCS on Thursday, 15 May, 2008. It does not name the child but gives the birth date as [omitted] 2001. It records that there would be some follow up. The next document seems to be the follow up. That is a letter from the Department of Community Services to

Ms M dated 20 May, 2008 addressed “To whom it may concern”. It attaches a request for information in respect of [X] born in 2001.
There is another document headed "Confidential Form A" from the Department of Education and Training which is, it seems, the report made by the school to DOCS about a suspected risk of harm. The concerns noted in the document which, as best as I can tell appears undated, is "Exposure to drugs/alcohol; absences from school - 53 days '07, 22 term one '08; frequently late".
On 26 June, 2008 Ms M sent a facsimile to DOCS providing some further information. It is important and I quote the whole of the facsimile:
In following up your request for additional information regarding [X], I advise the following:
·[X] has been absent from school for 29 days so far this year.
·On many occasions when [X] has been too sick to come to school on a Friday and again on the following Monday, he has played football at the weekend.
·He is late to school almost every day, with dad's excuse usually being "I slept in". He has been included in our reading recovery program as one of only four students on the program but his absences have resulted in unsatisfactory progress.
·[X] uses and demonstrates sexualised language and behaviours and this is becoming more frequent.
·He engages in "humping actions" with girls of his own age and joins in a mixed group of peers who talk about "having sex" with one another.
·Last week (18/6) [X] was reported at "having sex with the table" whilst in the school library.
· One of this group of girls reported yesterday (25/6) that [X] "was trying to pull my pants down and lick my rude part". They were under the tables in the library picking up pencils at the time. Other members of the group repeated the same story.
We are very concerned for [X]'s safety and wellbeing and will continue to monitor and report any concerns or observations.
In so far as that letter deals with the question of absences from school, it confirms that the absences were of such a volume and his tardiness was so regular and frequent as to cause the school concern. It is clear that his absences and his tardiness have had an effect on his academic progress. So much appears from the comments made by his teachers in the school reports or at least some of them.
The father's usual excuse for having [X] late to school – "I slept in" – is consistent, although I make no finding that it is probable, but merely observe that it is consistent, with my earlier finding that it is likely that the father is continuing to use illicit drugs.
There was really no adequate explanation for the amount of school that [X] has missed. In term one of 2007 I accept that he was diagnosed with glandular fever and that explains, perhaps, the absences in term one but it goes nowhere towards explaining the balance of the absences for which the father was able to offer no adequate explanation.
There is also no adequate explanation for [X]'s tardiness to school, especially given the father's evidence that he lives in the same street as the school and it is but a 20 minute walk down the road.
I turn to the question of academic performance. As I have already remarked, there are comments in his two reports from last year that [X]'s inability to attend school, either at all or punctually, has reflected in his academic performance. When one compares his comments and performance one semester to the other, it will be appreciated that in most subjects he has maintained a reasonably consistent level, although there are some exceptions.
His performance in English seems to have reduced. His overall achievement, described in his first report as competent, is only described as basic in his second semester report. His English teacher makes some very concerning comments about [X]'s reading capacity and ability, his capacity for application to his school work and the effect of not being able to fully participate in the reading recovery program.
Mathematics seems to be an area in which [X] has improved, although perhaps the improvement is only minor.
Science and a subject called HSIE, with which I am unfamiliar, seems to have been a constant for [X] over both semesters last year; however, his progress in Personal Development and Health and Physical Education has declined, semester one to semester two. The comments made in respect of that subject in his semester two report seem to indicate that [X] is not participating in physical activity, particularly at school, as much as might be expected and he has not "mastered many of the basic fundamental movement skills which, in turn, would allow him greater fitness, success and enjoyment when participating in sporting activities." That might be consistent with the evidence that the mother gives about what [X] does or says he does at his father's place, namely plays computer games.
The next subject, Creative Arts, seems to be a constant as well, although the score for overall effort has declined from semester one to semester two.
Information, Communication and Technology is a subject in which [X] has improved but the subject described as Library records a reduction in his performance, semester one to semester two.
There is a very general description of various matters, described under the heading Social Development and Commitment to Learning, in each of the reports. Perhaps the most concerning part of that is that according to both reports [X] rarely displays self-discipline.
The comments made by his teachers in both reports are worth repeating. From the first report:
[X] is making progress in all learning areas; however the rate of progress and the lack of effort he shows towards many tasks continues to be disappointing. [X] finds it hard to focus on written tasks and regularly puts minimal effort into quality and completion of his work. Regular absences and lateness to school means [X] misses valuable learning time. Improved belief in his own ability, self control and effort towards his school work will bring the wonderful achievements he is capable of.
Semester two:
[X] is a capable learner and has made good progress in most aspects of his learning this semester. [X] particularly enjoys active learning experiences as he sees much more relevance in the task at hand. He has good inquiry skills. [X] does, however, still become easily distracted in many less active learning situations. This affects his overall achievement. Improvement in personal organisation and respect for his and others' right to learn will also be beneficial in year two. It was great to see an improvement in attendance during semester two. It would be good if this improvement could include punctuality next year.
There is very little evidence about what has occurred this year. The father says [X] has missed two days of school and that is all. One of them was notified to the mother, the other not; both seemingly for legitimate reasons. As to whether he has been at school on time or not, there is really no evidence. The significance of his scholastic performance does not seem to be something which figures in the forefront of the father's concern for [X] and without attempting in any way at all to be critical, I note that the father himself proceeded only to grade nine. That might indicate, on the part of the father at least, some lack of importance being attached to formal education.
I turn then to the next question, which is the father's lifestyle and physical surroundings. There was much evidence in cross-examination of the father about his previous criminal activities. It is clear from the evidence that he has a history of violent conduct and what might generally be described as anti-social behaviour. He made the point that in the last five years, however, there have only really been two difficulties for him. I am not so sure that his summary is a correct summary of the evidence. Be that as it may, what is of concern is that as recently as late December last year, the father was again involved with the police in a public place in a way which caused the police to issue him with a caution. The father had an explanation for all of the occasions on which he was dealt with by the police. Sometimes it was said that the episode was not his fault, he was simply responding and providing assistance to those to whom he thought he needed to assist: his brother; his sister. Other times he said it was simply not him who was caught up in the relevant conduct. But what his history does indicate is simply what the mother's counsel suggested it did, namely a history of anti-social behaviour and what might be described as, perhaps, poor role modelling for [X].
The father gave evidence that there have been a number of temporary residents in his home over the last couple of years. He has provided accommodation to them out of a sense of duty or a desire to help them out. The evidence that the father gave about his household and those persons who have passed through it in the past couple of years lends support to the notion that the father is prepared to act when he forms the view that he should “assist” someone. Let me explain further. The father gave evidence that one of the issues about which he was cross-examined concerned some neighbours who were setting upon his sister, who was apparently 14 years old. He went to her assistance and ended up himself being charged with assault, but he saw it as his role to defend his sister. It may well have been, but of all the people involved, he was the only one to be charged and dealt with for committing an offence.
He also was charged and dealt with for an offence arising out of an altercation between him and some gentlemen who were passing by him in a car. He was given to yelling out to the men about some wheels that were on the motor vehicle and which the father thought belonged to a person who the father knew to be in some way disabled. The father took it upon himself to remonstrate with the men as they drove past. An incident ensued and it all ended, to use the vernacular, in tears. Again, an example of what the father considers being an appropriate response to what he perceives as an injustice.
I refer to this evidence, not to be critical, but rather to demonstrate, first of all, that the father's approach might, to an outside observer, seem chaotic and impulsive. Secondly, to demonstrate that the environment that the father tends to create around him and to which [X] will necessarily be exposed, is not one that is conducive to stability and security. It might be the case that since [X] has lived with him he has lived in the same town. Indeed, perhaps the same house, but stability and security is made up of more than simply physical surroundings. It is made up of relationships and the evidence the father gave about those passing through his household and the circumstances in which they did so might tend to indicate instability for [X], rather than stability.
In that respect the mother is no angel either, of course. In the past she has made decisions which, on one view, might have been seen to focus more on her own needs than those of [X]. The evidence reveals that commencing in about October, 2005 she left [X] in the care of the father for extended periods of time, although she would return from time to time, while she worked around Australia. She describes her work as waitressing but it seems that she participated in what might be loosely described as adult entertainment.
The father is critical of that but I am not sure why. Save for one matter, there seems to be no evidence that [X] has been exposed to the employment that the mother undertook from time to time and about which the father objects. There is one instance where the father says that [X] saw a photograph of his mother in some promotional material in [S], about one of the shows in which she was involved. On the father’s case, that caused [X] no particular concern. It seems to have been more of a problem for the father and if I accept, as I do, the mother's evidence about the father’s reaction to him learning of her employment one might come to the conclusion that the father was more angry simply about not being told about the employment and the nature of it, rather than the mother's participation in it.
In any event, the mother’s decisions to leave [X] with the father to tour around Australia to earn money, she says to discharge some debts – there is no evidence about the nature of the debts or how they arose – in one sense might indicate a focus more on her own needs than those of [X]'s. But, at the same time, it is important not to be overly critical because the decision to place [X] with his father was a decision which brings credit to the mother. She might have made a different decision for the parenting arrangements for [X]. She might have made a decision to either take [X] with her, which on any view of it would not have been in his best interests, or she might have made a decision to place [X] not in the care of the father but in the care of some extended family. There is evidence in this case of an aunt who has cared for [X] from time to time and the mother's father, who has shared accommodation with the mother from time to time. She might have made a decision to leave [X] with them but her decision to leave him with the father indicates a number of things. The first is a focus on [X]'s need for a relationship with his father; secondly, an ability to put that need ahead of her own interest in keeping [X] close to her despite where she was from time to time; and it also demonstrates a faith of sorts in the father's capacity to provide the care for [X] that he required. Her case now is that having been tested, he has failed in the provision of appropriate care to [X].
It follows from what I have said, particularly about the father, that I am satisfied that the father’s proposal carries with it a real risk, I think, that his lifestyle will visit disadvantages upon [X], in particular an exposure to things such as have occurred in the past: transient occupants in the father's household; and an exposure to the father's likely lifestyle involving drugs or drug affected associates. There is a risk that he may be exposed to his father’s antisocial behaviour that has, in the past, resulted in involvement with the police.
In my view this is a finely balanced case. The findings I have made, about the father and his care of [X], particularly in so far as it concerns his schooling attendances and the father's lifestyle choices tend to indicate in my view that [X] ought to reside with his mother.
Against that, however, are the comments of the family report writer, particularly concerning the effect of a change on [X] and the nature and extent of his relationship with his father and the fact that the mother is to an extent an untested parent. Her evidence is that she has been recently delivered of another child, only a very short time ago, and that she is in a household where she is with a new partner, Mr D. That relationship itself is untested. To add into that mix the possibility of dealing with a child who reacts against a change in his arrangements is to, in my view, to experiment. The Full Court of the Family Court have made it clear that in an appropriate case it is appropriate to make orders that might be seen as such.
The father's difficulties are long-standing. The family reports in this case have been with the parties now for some time. The first report was delivered, as I recollect at the end of 2007 and the second report in September, 2008. Despite what is contained in those reports about some of the concerns for the father's parenting of [X], and despite the concerns raised by the school with respect to [X]'s attendances and his punctuality, there really seems to be no change in the father's behaviour. I have recorded that he swears that he has given up his past lifestyle but I hope I have made it clear that I do not accept that. So it seems likely to me that what has occurred for [X] in the father's household thus far is likely to continue in a general sense in the future.
That carries with it considerable risk for [X] in the long-term: risks associated with his education; risks associated with his personal development; risks associated with his attitude towards authority; risks associated with discipline.
In the mother's household the risk is, as I have indicated, the fact that she is untested and [X] may not cope. But the risks associated with that can be managed more easily than the risks that I have identified in the father's household. If it is the case that the mother does not cope with [X]'s behaviour (and [X] is not coping) if he was to live with her in the short term, then I am satisfied that she would seek appropriate assistance and take appropriate steps to ensure [X]'s wellbeing. That might mean returning [X] to his father. That might mean accessing professional assistance. But her behaviour in the past has indicated a willingness to do that when it is necessary and I am confident that in the future she would do that if necessary.
ORDERS DELIVERED

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Associate: S. Haysom

Date: 26 June 2009