Freedom Law

Substance abuse means new care for child

Substance abuse means new care for child

LOCKHARDT & SEARLE

Substance abuse – Consideration

  1. The court received substantial assistance from counsel for the applicant, respondent and ICL respectively.  The orders as sought by the father and as made on 23 May 2019 received the substantial support of the ICL.
  2. Since the matter proceeded as an interim hearing, the matters addressed below do not represent ultimate findings of fact and are conditioned upon their being tested and evaluated at trial.
  3. As presently appears, the respondent is afflicted by substance abuse and mental health issues. Substantial allegations of abuse are recorded in the report of the Department of Health and Human Services (DHHS).  While the allegations of family violence are reciprocal, and as yet untested, the DHHS report includes the following:

    . . . it is alleged there has been family violence on multiple occasions, including the mother punching the father approximately 40 times, threatening to kill the father and sending hundreds of abusive text messages to the father.

  4. Although the court attempted to provide some resources so as to assist the parties in resolving the conflict, the respondent did not comply with the order that she attend with the child a s 11F child inclusive conference. Neither the child mother nor the child attended that conference and the suggested explanation for non-attendance was at best belated. There was tendered in evidence a medical certificate which post-dated the s 11F conference by some five days and contained little which was of any assistance in persuading me that the respondent had proper reason not to attend the s 11F conference or to make provision for the child to attend.
  5. The applicant father did however attend the s 11F conference. The family consultant addressed the question of future directions and observed that the level of risk detailed in the affidavit material was concerning and that it would be in the interests of the child to have the proceeding resolved in a timely manner. The family consultant gave qualified support for the proposition that a requirement for the applicant to spend time with the child and supervised basis appeared to be redundant, including in circumstances where the applicant spends unsupervised time with another son of another relationship.
  6. The respondent has again unilaterally terminated the child’s spend time arrangements with the applicant father, having done so on several occasions.  Contextually, such conduct was the catalyst for the initiation of this proceeding.  Orders for the recovery of the child were conditioned on the applicant father incurring the cost of the mother and child taking flights from Perth to Melbourne.  The parties are of modest means.
  7. Evidence has been filed by the applicant’s partner and his mother which may be supportive of a conclusion that the mother continues to behave in an erratic and drug affected manner.
  8. Objectively, there has been a systemic failure to comply with requests for drug screening and, on several occasions, when screening has occurred the respondent has tested positive for amphetamines and benzodiazepine (substance abuse).
  9. The mother’s affidavit material warranted close consideration.  In several respects it seemed to have been drafted in a manner which lacked a proper, evident or objective basis.  For example, somewhat incredibly, the respondent gave an account of a report by the four year old child which the mother described in terms as involving a seven-year-old child ejaculating onto the four year old child.  The physiological improbability of this sworn evidence is self-evident.
  10. The respondent mother acknowledged that despite the orders for hair follicle testing she had not done so.  She gave belated evidence to having undertaken one test for substance abuse which she ‘hoped to have available for a hearing’.
  11. I find that the manner in which the respondent has conducted herself to this point is confirmatory of an ongoing failure to comply with court orders and, more importantly, to respect the importance of the child’s relationship with his father. Those matters notwithstanding, the respondent’s counsel acknowledged the importance of the child having a relationship, and contact, with his father.  While I have no doubt as to the sincerity of the submission as made by counsel, the respondent’s past conduct left me unconvinced that there would be any immediate change.
  12. There is a swathe of text messages which have been sent by the respondent to the applicant, including of recent date.  The respondent’s text messages are remarkable for their lack of restraint and abuse of the applicant.  Contrastingly, the applicant has not responded in that manner to the respondent’s texts.  The respondent’s conduct in sending such text messages is to be considered in the context that the parties agreed in consent orders that such communications as they had would be confined to parenting issues alone.  The Order has been systematically ignored.
  13. I accept the submission of counsel for the applicant that he has complied with all requests for drug screening and, moreover, that he has taken the initiative and actively invited the respondent’s lawyers to seek random drug screening of him (including before any such orders were operative).  While there is evidence that the father has engaged in the ingestion of illicit substances, his recent conduct is clear of positive drug results.
  14. Whilst the respondent’s counsel submitted that her client was trying to establish herself in a more stable environment, I was not persuaded that this withstood scrutiny in the face of persistent non-compliance with orders and unilateral conduct which ignored the importance of the child having the benefit of a relationship with each of his parents.
  15. As I indicated upon the conclusion of submissions, I am satisfied to the requisite standard that the child faces and objectively lesser risk of harm by being in the care of the father until further order.