Drugs and Parenting do not mix

Drugs and Parenting do not mix

Leonard & McLean [2016] FCCA 792 (9 June 2016)

For full case: http://www.austlii.edu.au/au/cases/cth/FCCA/2016/792.html

1. This matter of Leonard & McLean is an application concerning a little fellow, X, who was born in (omitted) 2010 and is by way of order by consent made on 20 November 2013, living in what could be regarded as an equal time or shared care arrangement.
2. When the matter came on for hearing this morning for final hearing, the mother sought an adjournment application. She had attended court alone and she sought that adjournment because as she had lost her legal representation in January 2015 and had not been able to obtain fresh lawyers.
3. I have nothing updating from the mother, no trial affidavit. The mother lost her legal representation due to her failure to attend legal aid mediation in January 2015. She proffered as the reason for this that her grandfather had died and so she took her children on a holiday to see their great grandmother. However, that is the reason she lost her legal representation, as far as I can determine today. I granted the mother her adjournment application. She was at a significant and serious disadvantage and that means that I cannot then make an order in X’s best interest on a final basis.
4. The mother clearly suffers anxiety issues. That was evident to me in court by her behaviour and tearful and at times volatile exchanges. She has poor, if any, impulse control which again was clear to me in court by her outburst talking over the top of me, trying to interrupt me and the father’s lawyer. The mother had difficulty in accepting or understanding what the court’s role is or my obligation under the law. As she has filed no updating material, I have no idea what her position is as I could not discern it orally either.
5. I indicated I would conduct an interim hearing as the father sought if I granted the adjournment because as the orders currently stand the father has significant concerns about his son’s welfare in the mother’s care for a multitude of reasons. Interestingly, the mother has some concerns too about the orders as they currently stand.
6. The father seeks, by way of the amended application he has filed, that all previous orders be discharged. That the child live with him he have sole parental responsibility, the mother spend time supervised with the child, supervised by her mother for one period each three weeks, or as the maternal grandmother could accommodate. If the grandmother was not able to facilitate that time it be at a contact centre Interrelate (omitted).
7. Those orders were quite distressing to the mother. The mother asks I lift order 7, which requires that she spend time with her son at her parent’s home, because she and her father do not get on and there have been altercations and poor behaviours, police called on various occasions as set out in the material that I have read and at times, her son has been present when these arguments and poor behaviour between she and her father has occurred.
8. Now, as best as I can determine, the order for equal time and the mother having to reside with the child at her parent’s home came about due to the mother’s criminal history and convictions in 2013. This is gleaned from reading the police statement which is father’s exhibit 1 dated 29 June 2013 and I will read that out shortly.
9. The evidence I read:
   1. For the father:
      1. Father’s trial affidavit filed in March 2015;
      2. His tender bundle marked Court Exhibit 1, including his latest urine analysis test on 27 March 2015; and
      3. Submissions by Ms Cantrall.
   2. Family Report by Mr W dated 7 August 2014.
   100. For the mother:
        1. Exhibit 1, which was two letters from her probation and parole officer dated 20 April 2015 and her submissions to me.
10. Both parents have a past history of significant illicit drug and alcohol abuse. The father says the mother’s abuse continues in that she continues to abuse at least drugs and, perhaps also although he is not sure alcohol as well. The mother says at minimum the father continues to abuse alcohol and perhaps drugs. So they each say that this behaviour is continuing, but teach has a significant history of drug and alcohol abuse in the past.
11. The father says he is reformed and he has drug tests to prove this which he attached to his trial affidavit. He lives with his mother in stable accommodation. He and his mum get on well, and she is a significant support in the care of the child and he is at present the parent best able to parent his child. He says his son is not exposed to any risk of harm in his care.
12. Each the mother and father’s drug and alcohol use in the past resulted in both having serious addictions and exhibiting very poor behaviours. I find it is more likely than not that X, who was born on (omitted) 2010, has at times been subjected to his parent’s poor behaviours. As each of his parents says this about the other.
13. Children should not have to live in a household where their parents are affected by drugs and alcohol it is as simple as that. As this is an interim hearing and I cannot make findings of contested fact. However I find the father has been open and honest in his affidavit and particularly to Mr W about his prior history. When I go to his affidavit and I read paragraphs 10, he says this:
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    Throughout our relationship, we both used methamphetamines recreationally and we drank a lot of alcohol. We ceased using drugs when Ms McLean discovered she was pregnant with X. I observed Ms McLean to be diligent with her health and lifestyle throughout this time.

14. A positive comment about the mother. Paragraph 12:
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    I deny being violent towards Ms McLean. We both engaged in verbal arguments that would involve us both yelling and swearing at one another. I would particularly react in this way, if Ms McLean started being physically violent. I recall several examples where Ms McLean has been violent, volatile as to compromise X’s safety.

15. At page 5 of the family report, the father tells Mr W this:
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    In relation to himself, Mr Leonard said he wished to stress the point, “I am no angel”, and since making the decision to give up illicit drugs in 2012, he has had several relapses. During the last 12 months, for example, Mr Leonard said he had relapsed about five months ago, and on another occasion about a year ago. However, he said the child wasn’t in his care, and he has not continued to regularly use the drugs during this – after these relapses.

16. Paragraph 7, he tells Mr W:
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    He acknowledged when they were together, we were both using hard drugs, speed and ice. And while he claimed he has given them up, he believes the mother continues to use amphetamines, methamphetamines and especially OxyContins, to which he claims she was badly addicted.

17. The father said he had clean urine analysis and he has, however, I do note the creatine levels were very low and there is some argument or some point that they could have been in some way diluted or watered down. That point was made by the mother made to Mr W and to me and I accept that point. His last test he showed to me today did not have that difficulty and was clean but those attached to his affidavit are all subject to possible dilution. So perhaps the father is not out of the woods either but he has been open, honest and frank about his history and his relapses.
18. The father says that his son loves his mother and the mother acknowledged to Mr W that the child loves his father and they have a good relationship. The father says he believes that the mother is still using drugs, associates with known drug suppliers, is unstable in her housing and in her life, has exposed the child to fights between she and her father which is supported from the COP’s entries in the father’s tender bundle. X was present when police and intervened to stop the argument between the mother and her father. This is a risk to the child’s wellbeing and stability and to his emotional health.
19. I note the stark contrast between the father’s honesty and openness to Mr W and in his affidavit – and the mother’s statements to Mr W. The mother told Mr W the father is a liar that he continues to abuse drugs and alcohol. That the father and her father are at the heart of her problems she has had in the last two years, and at paragraph 21 of the family report, told Mr W:
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    She is still under the supervision of the probation and parole service following her release from prison. She claimed probation and parole are very supportive of her. They understand the oppressive conditions under which she is currently living and consider I am doing really well.

20. The mother made this statement July/August of 2014. The mother says in paragraph 25 to Mr W, when asked about the father’s application that X love primarily with him:
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    Mr Leonard is so erratic. He is all over the shop. He takes X to the pub all the time. He drops him off with random people. He is left with lots of babysitters. He also hangs around dodgy people.

21. The mother was late to the interview with Mr W. She was late to court today and this is a history and a constant theme through the material that I have read. Unfortunately the mother is not a witness of truth for the following reasons. This is a most unusual finding to be able to make in an interim hearing.
22. The mother told Mr W at paragraph 17 of the report:
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    The father had suspended her time with X from late April 2014 till 17 June 2014 because he wanted to take X away on a holiday over Easter.

23. The father’s explanation was he was concerned about the mother’s functioning.
24. The mother claimed that since November 2013, she has undertaken four urinalysis tests and they are all clear. She went on to explain the first two did show she smoked a bit of pot but that has now ceased and the most recent two which Mr W is in June 2014 shows she has been clear of illicit drugs.
25. The mother produced a urinalysis report in June 2014, to Mr W which I do not have the benefit of which indicated positive results for benzodiazepine and codeine and negative for other drugs. The mother said this result was consistent with the medication schedule advised by her doctor, because she had injured her hip.
26. The father has tendered at point 19 of his tender bundle some seven tests of the mothers, starting on 10 December 2013 through to 1 December 2014, covering the period of time where the mother says all her tests were clear. Not one of them was clear, not one. The mother did not take the test as was requested in March 2015 by the father’s lawyer for the purpose of this hearing and thus I do not know what her current drug testing result would be.
27. The mother’s clear statement to Mr W in August 2014 that her urine tests were clear was nothing but a falsehood. They were not clear. The mother has her explanation concerning the traces of codeine and benzodiazepine found as being due to a medication schedule including codeine for an injured hip, oxycontin because of poor teeth in 2012, and patches on her arm for Digesic. However the mother has not produced one skerrick of independent information to support her explanation. I am left completely in limbo, as has been everyone else, including her probation and parole officer.
28. The mother will need to produce these medical records to support her explanation and her explanation may well be accepted at that time.
29. Point 2 of the father’s tender bundle is the latest report from subpoenaed material of the mother’s probation and parole file. I accept the mother has produced two letters in relation to this service as well.
30. The report is dated 16 December 2014. The first page refers to the mother’s use of a Digesic patch on 1 December 2014. However this comes about from self-reporting when she was asked to explain the positive drug test. The report states that the officer told the mother she was engaged in drugseeking behaviour however, the mother has refused to accept this opinion.
31. The report continues “Ms McLean continues to lack the insight and motivation required to effect real or measurable change. She continues to generate chaos within her lifestyle and either refuses, or does not possess the ability, to prioritise her legal obligations”. The service was not satisfied that the mother required a Digesic patch in December 2104 and thus formed the view her conduct was drug seeking if indeed she was prescribed such a patch.
32. The mother has not satisfied me today she is clear of drugs. The father has not necessarily satisfied me he too is clear of all drugs because his tests demonstrated low creatine levels.
33. The report also refers to the mother experiencing housing instability in recent years and that is clear. The mother agrees that she and the father have a poor record as tenants and she says that she has been unable to obtain her own independent accommodation because of that. The conflict between her and her parents, particularly her father, was noted in that report.
34. The report says that:
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    The mother was prescribed OxyContin a few years ago for toothache. She developed a dependency on the medication, and she began to source it illegally when it was no longer prescribed to her. She undertook detoxification, and then residential rehabilitation at (omitted) House in 2011 for drug issues, and she undertook pharmacotherapy treatment when she returned to the community. Inquiries indicate she selfwithdrew from the treatment program in December 2011, due to the daily imposition it had on her lifestyle. The mother reached a turning point in her drug use when she was incarcerated on remand for breach of bail in recent weeks. She acknowledged her guilt in relation to the matters before the court. She has conceded she could have managed conflict situations with the father better. She is willing to undertake the managing emotions offender group.

35. This was at that time positive. However it was not to be.
36. Point 6 in the tender bundle is the breach of good behaviour bond imposed upon the mother:
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    Ms McLean reengaged with the service, reporting to (omitted) community corrections on 7 May 2014. During the interview she was confronted regarding her failure to comply with the supervision requirements of the current order. After lengthy discussion, she indicated she accepted responsibility for her behaviour which resulted in a breach action.

37. The mother has been breached due to her failure to comply with probation and parole service on numerous occasions. Although she gave a verbal undertakings to the service to comply with her supervision requirement henceforth and obey all reasonable directions and her asserted commitment to drug programs, acknowledging her guilt and had opined she had reached a turning point in August 2013, this was not to be.
38. Point 9 of this tender bundle is a report of the breach of good behaviour bond, on 2 April 2014:
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    Ms McLean failed to participate in and complete the getting smart group program. Ms McLean failed to attend the getting smart program on 27 February 2105 citing a dentist appointment. She did not provide evidence of this appointment.

39. This echoes what I am to say today.
40. No evidence has been provided to me of what the mother says are the reasons for her failure to comply with her probation and parole conditions which echo her failures in this Court.
41. Her failures with probation and parole include failing to attend a session on 13 March 2014, attending the getting smart program on 27 March 2014 40 minutes late. On 2 April 2104 she rang she was running late for the day session and was told she would not get in because she was late. The mother had been made fully aware, prior to enrolling in this course she had to be punctual.
42. During her period of supervision Ms McLean’s case manager had focused on her drug and alcohol issues and lifestyle instability. She was encouraged to seek independent accommodation through local housing services on 2 April 2014. The mother came to court today and advised she has been recently attended Barnardos and has obtained some independent accommodation for a period of three months. I accept this is the case however she was advised to take this step 12 months ago.
43. The report continues:
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    In terms of reporting to this service, the mother’s disorganisation and apparently chaotic lifestyle has hindered her ability to report on a regular basis. When she does engage, she is open to discussing her criminogenic issues. Her participation in the Getting Smart program was the main strategy employed to address her drug and alcohol issues. The service was unable to effectively verify her patterns of drug and alcohol consumption, and she has withdrawn consent for the service to speak with her parents about her progress.

44. At point 8 the service reports that the community corrections have had no further contact with the mother and the telephone call to her mobile number on 22 April 2014was not responded to.
45. At point a 5 a report from probation and parole dated 13 October 2014 states that on 23 August 2014, the mother underwent a urine analysis test revealing Oxypam, morphine, codeine, amphetamine, methylamphetamine and cannabis.
46. This is around the time of her interview with Mr W wherein she told him how well she was doing and the probation and parole were really happy with her progress. Nothing could be further from the truth.
47. The other was given a written direction on 2 September 2014 to obtain a placement in residential rehabilitation. She failed to do this and she says on 18 September 2014 had a lapse into drug use. She had not reported to (omitted) Community Corrections since 18 September 2014.
48. The service is aware that concerns have been raised that Ms McLean is not lapsed into illicit drugs as she claims but has relapsed and has demonstrated drug-seeking behaviours and poor emotional self-regulation. The service reported she is illiterate and homeless and has been associating with a number of persons involved in the local drug sub-culture in (omitted), a matter the father referred to.
49. There is a note which states that the mother’s adverse and irresponsible behaviour in the family including abusive and threatening language to both parents appears to only compound family stresses.
50. Point 4 of the tender bundle is a further report of 13 October 2014 where the mother failed to provide urine sample.
51. Further in that report at point 3 the service reports:
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    The mother agreed to a meeting with her father to try and set some clear boundaries between them because she had to stay at her parent’s home to have time with her child. Both Ms McLean and her father indicated satisfaction and willingness to commit to an agreement. The service has been unable to follow this up, or the outcome of the plan, because the mother refuses to allow the service to speak to her parents. The service is unable to effectively supervise the mother should she continue to refuse to allow her parents to be spoken to and it is noted the mother’s parents have reluctantly agreed to continue to having her stay with them, prioritising the welfare and safety of their young grandson over the best interests of the family.

52. One can only imagine the tension being almost unbearable.
53. The last updated report is 16 December 2014. The service is perplexed by the mother’s circumstances, noting that the service has instigated breach proceedings against her on a number of occasions during the supervision period. It’s noted that the offender has been afforded various opportunities by the criminal justice system to correct her behaviours and re-engage in a meaningful manner, albeit to no avail. A significant amount of money and resources have been expended to assist the mother and she has failed to take up any assistance. Huge amount of money put into this. Huge resources.
54. Notwithstanding this, the service remains of the view that the mother requires serious and perhaps lengthy alcohol and other drug rehabilitation should it be her intention to avoid further conflict with the law. She refused to acknowledge the seriousness of the situation and her limited insight continues to frustrate and stagnate the supervision process, resulting in breach of action. They recommended to the local court to place her on a lengthy bail undertaking with specific conditions.
55. The mother says to me today, “I’ve got stable accommodation. I’m off drugs. I’m attending counselling. I’m doing absolutely everything I possibly can to retrieve myself. Therefore, I need an adjournment.” I accept that submission. I will give the mother that opportunity and have granted her an adjournment but I will not continue to place her son at risk during the adjourned period. I accept the father’s position; this child is at serious risk of harm in his mother’s care if time is not supervised.
56. The mother’s parents have done all they could do. Her mother is unable to continue to supervise time at the mother’s home in (omitted). She has her own issues.
57. The only possible way is for professional supervision at Interrelate in (omitted) to provide supervised contact. This will provide a place of safety for the child and enable him to spend time with his mother, for observations of the child with his mother to be made and recorded, which hopefully will demonstrate they have a good close relationship that the mother reacts to him well and he is enjoying his time with his mother. Supervision will allay the fears and concerns the father has and reduce any resulting anxiety in the child.
58. I will discharge the current orders. They are now inappropriate and not in the child’s best interests.
59. Parental responsibility cannot be shared at this time. The child is at risk of harm from his mother’s behaviours and lifestyle choices and she has exposed him to violence and abuse.
60. The mother has a serious issue with her own mental health and functioning. I cannot see she is able to focus on the needs of the child and has not been able to focus on the needs of the child despite my asking her on several occasions, could she could not tell me her behaviours in the past that might have hurt her son other than arguing with her dad and his dad, with which I agree.
61. The mother could not tell me that her drug and/ alcohol issues affected and hurt her son when that is clearly the gravamen of the issue. The mother has much work to do in retrieving herself to be the functioning parent to her son that she wants to be.
62. The father is able to and has acknowledged the negative impact upon his son of his prior poor behaviours and addictions and is mature according to Mr W.
63. Having rebutted the assumption of equal shared parental responsibility, I need not consider whether there ought to be an order for equal time or significant or substantial time. The only order I can make in this case is an order for time supervised to protect the child from his mother’s functioning due to what I perceive is her significant drug problem. That can only happen at Interrelate and so I will make an order that both parties are to do all acts and things necessary to enrol in the Interrelate intake program and for that centre to provide time with the child and the mother on as many occasions and for times that centre deems appropriate.
64. I will make the following further order which is that if the maternal grandmother is able to supervise time with the child and the mother at the mother’s home she is to firstly to
65. A. file a written undertaking with the court that she is willing to supervise time, and
66. B. is to give the father seven clear days’ notice in writing of the day she is able to supervise time, and
67. C. any such time is not to interfere with his pre-school care arrangements, which is most important for him
68. D. any such time will be day time only and that will be on no more than two occasions each calendar month.
69. I have appointed an Independent Children’s Lawyer and in the interim I find these are the order in the child’s best interests