Randall and Pavot

[2015] FCCA 3029

FEDERAL CIRCUIT COURT OF AUSTRALIA

RANDALL & PAVOT [2015] FCCA 3029

Catchwords:
FAMILY LAW – Whether an order ought to be made for the father to undergo random drug screens for the six months after trial.

Legislation:

Family Law Act 1975, ss.60CA, 60CC

The Applicant: MR RANDALL

The Respondent: MS PAVOT

File Number: DGC 1759 of 2013

Judgment of: Judge Small

Hearing date: 5 November 2015

Date of Last Submission: 5 November 2015

Delivered at: Dandenong

Delivered on: 10 November 2015

REPRESENTATION

Counsel for the Applicant: Ms A. O’Connell

Solicitors for the Applicant: Fiona McGregor

The Respondent: Ms Pavot In Person

ORDERS

1. The oral application of the mother that the father undergo random supervised drug testing is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1759 of 2013

MR RANDALL

Applicant

And

MS PAVOT

Respondent

REASONS FOR JUDGMENT

Introduction

1. Ms Pavot (“the mother” or “Ms Pavot”), who is 43 years old, and Mr Randall (“the father” or “Mr Randall”), who is 44 years old, have two children: X born (omitted) 2006 and Y born (omitted) 2008 (“the children”).

2. The parties handed up a minute of proposed final consent orders in relation to parenting matters only on the first day of the trial of their parenting and property matter, but there was one matter outstanding: whether I should make an order for Mr Randall to undergo random drug screens at the request of Ms Pavot for the six months following the trial, and if so, what the ramifications of a positive test result might be.

3. I should not have to state that a parent who is affected by a drug such as marijuana while caring for his/her children cannot be said to be fully competent to behave in a protective manner should any unforeseen incident occur, and therefore, such a parent is not acting responsibly in the best interests of the children.

4. Ms Pavot wishes me to make such an order. Mr Randall does not.

5. After a trial running across three days, I reserved my decision as to property matters and this one remaining parenting matter.

6. I am now in a position to make a declaration in relation to final parenting orders as set out above and these are my reasons for making that order.

7. At this time, my decision in relation to property matters remains reserved.

Background

1. The parties lived together from late 2003 and their de facto relationship continued until either August 2009 (on Ms Pavot’s case) or mid 2012 (on Mr Randall’s case).

2. That dispute, and its implications for Mr Randall's Application for property orders filed on 28 June 2013, is the subject of the threshold property matters heard over the three days of the trial held on 4, 5 and 6 November 2015.

3. X and Y are the only children of the relationship between the parties, although Ms Pavot has an adult daughter from a previous relationship who, while still a minor, lived with the parties for some of their relationship.

4. The parties (and later the children) lived together in a house purchased by Ms Pavot in 2002 in (omitted).  The previous owner was Ms Pavot’s sister.

5. Ms Pavot left that house with the children in August 2009 and since that time has resided with her father and her children in a house owned by her father in (omitted).

6. Mr Randall lived in the (omitted) property until March 2014. Since that time he has lived in a house owned by his grandmother in (omitted).

7. Mr Randall has repartnered. Ms Pavot has not.

8. The orders made by consent between the parties on the first day of trial provide for the children to live with Ms Pavot and spend regular time with Mr Randall.

9. They contain a restraint on Mr Randall consuming alcohol for 12 hours prior to and during any time he spends with the children, albeit with a denial of the necessity for such an order.

The Evidence

The mother’s evidence

1. Ms Pavot’s evidence, contained in her Trial Affidavit sworn and filed 22 October 2015 (“the mother’s Trial Affidavit”), is that Mr Randall has been a regular user of marijuana for many years and that he smoked the drug throughout the relationship.

2. She refers to the psychiatric report of Dr F dated 27 June 2014 where Mr Randall is said to have told Dr F that he had not used marijuana for nine years. Ms Pavot’s evidence is that Mr Randall’s marijuana use continued “throughout our relationship”, which, on her evidence, ended in August 2009. If what Mr Randall told Dr F is true, he would have ceased any marijuana use in about 2005. Ms Pavot says that the father lied to Dr F because she knows he continued to use the drug at least until she vacated the (omitted) property in August 2009.

3. While the mother does not have independent evidence of any current use, she says that she is “concerned that the Applicant may still be using marijuana. I am particularly concerned about whether this may affect the Applicant’s ability to care for the children of our relationship.”[1]

   [1] The mother’s Trial Affidavit paragraphs 54 and 55

4. She says later in the same Affidavit[2] :

   I recall whilst attending the Applicants dr’s (sic) appointments with Dr P at (omitted) Medical Centre and (omitted) Emergency he did not disclose his daily marijuana use. The Applicant did however give up for a short period of time late 2004, (sic) until his cousin gave him some as a gift at Christmas dinner. The Applicant then returned to daily smoking.

   [2] The mother’s Trial Affidavit paragraph 79

5. Those paragraphs appear to be the only Affidavit evidence of the mother in relation to the father’s marijuana use.

6. In contrast, the mother’s Affidavit material is replete with detailed allegations about the father’s alcohol abuse, which throws the paucity of detail about his marijuana use into clear relief.

7. In her Trial Affidavit, the mother deposes to multiple occasions throughout the relationship, and after she says the relationship ended, when the father committed serious assaults against her while drunk, on one occasion, she says, fracturing her hand.

8. She deposes to many other occasions when he retreated to his shed to drink, and when he neglected the care of the children to satisfy his desire for alcohol.

9. Perhaps the most serious of these incidents occurred on 19 June 2012 when the father attended at the property where the mother and children live, and assaulted both the mother and her father, as a result of which he was charged with, and plead guilty to, recklessly causing serious injury to Ms Pavot’s father. He was placed on a Community Corrections Order and fined, and one of the conditions of that Order was that he attend counselling.

10. I note that the children were present in the house when this violent crime took place.

The father’s evidence

1. The father’s Affidavit material concedes the above stated facts in relation to the incident that occurred on 19 June 2012 although he does not concede that he is, or was, a regular abuser of alcohol.

2. In his Affidavit material, the father says the following about his drug use:

   I do not have any drug or alcohol issues. I am a very occasional drinker and I do not drink prior to the children coming into my care. I am happy for that to continue to be the case.[3]

   [3] Affidavit of the father sworn 3 and filed 4 February 2013 paragraph 35

3. And then:

   In addition, I am not someone who consumes illicit substances. I rarely take prescription medication. I am not entirely sure; (sic) therefore, what the mother is fearful of.[4]

   [4] Affidavit of the father sworn 3 and filed 4 February 2013 paragraph 36

4. Nevertheless, the father concedes that he was affected by alcohol on 19 June 2012 when he attended the mother’s place of residence and assaulted her father.

5. In the face of the objective evidence of his conviction for the assault of the mother’s father while he was drunk, the father’s denials about his alcohol abuse in his Affidavit sworn in February 2013 ring a little hollow. It may be that he has moderated his alcohol consumption since he so deposed, and I note that orders made by consent on the first day of trial include an injunction in relation to him drinking alcohol for 12 hours prior to and during any time he spends with the children, albeit that the order states that he denies the necessity for it.

6. The court is concerned that Mr Randall’s denials about his marijuana use might be of similar quality.

7. The mother and counsel for the father made submissions about this issue on the first day of trial.

8. I note that no evidence was adduced from either party in cross-examination at trial about the issue of the father’s marijuana use.

9. The father’s submissions essentially centred on there being no evidence of current drug use by the father and therefore the lack of necessity for the order sought by the mother.

10. His counsel stated that he was not prepared to consent to an order for drug testing because of the cost of testing and the inconvenience he would necessarily suffer.

11. Counsel stated further that the mother, while represented by lawyers, had agreed at interim stages of these proceedings to consent orders which did not include the requirement for the father to undergo drug screens.

12. The mother attempted to tell the court from the bar table that her lawyers had failed to act on her instructions in that regard, but as there is no sworn evidence in relation to that, I will not take it into account.

13. The court must be able to rely on the veracity of the consent of litigants to particular orders being made, or indeed, not being made, when making orders by consent.

14. That reliance rests on particularly strong foundation when a party is represented by counsel at the time consent orders are made. To allow litigants to state from the bar table months and even years after such orders are made that the orders do not reflect their intent at the time would make the whole concept of orders made by consent very shaky indeed.

15. I therefore consider it significant that no such orders were made in the interim stages of the proceedings.

16. I note that neither party was cross-examined at trial in relation to Mr Randall’s alleged marijuana use.

Independent evidence

1. I have already mentioned the report of Dr F in which he states that the father told him that he had not used marijuana for nine years.

2. Three family reports were prepared during these proceedings: the first dated 29 October 2013 (“the first family report”); the second 12 January 2015 (“the second family report”) and the third dated 30 October 2015 (“the third family report”).

3. The first family report states that Ms Pavot is concerned about the father’s drug use and wants him to undergo drug screens. The report does not recommend any orders in that regard.

4. The second family report states that Ms Pavot asserts that much of the family violence allegedly committed by Mr Randall was “to do with alcohol and drugs”. However, all examples provided to the family reporter related to his excessive alcohol consumption. The family report recommends “that it may be best to Mr Randall to continue to ensure that it is not use alcohol while the children are in his care”.

5. The third family report states that “Ms Pavot said that Mr Randall smoked marijuana all through their relationship and he was a heavy drinker; he would binge”. The reporter again says that Mr Randall should continue to ensure that he does not drink alcohol when Y and X are with him.

6. I note that the reporters do not state in any of the reports that either child spoke about the father using marijuana, or indeed his drinking.

7. On 19 June 2014, I made interim orders restraining the father from using any illicit substance and from being under the influence of alcohol (that is, having a blood alcohol reading of .05 or higher) for 24 hours prior to and during any time he spent with the children.

8. I note that that was the only substantive order made on 19 June 2014.

9. A similar order, among other parenting orders, was made by me on 20 July 2014.

10. None of the parenting orders made by consent between the parties on 7 August 2013, or 12 November 2013 contained such a restraint.

Conclusion

1. In order to make a finding of fact in civil proceedings such as these the court must be satisfied, on the balance of probabilities, that the fact is true.

2. The mother in this case is essentially asking me to find that the father is “probably” still using marijuana.

3. Upon the finding of that fact, she seeks an order that he undergo drug testing for the next six months to ensure that if he is using marijuana, she will know.

4. While I am concerned about the possibility that the father might be continuing to use marijuana, the evidence before me does not satisfy me to the requisite standard of proof. That is, I cannot find that it is more probable than not that Mr Randall currently uses marijuana.

5. In those circumstances I will not make an order that he undergo drug screen testing for the next six months, which means that the final parenting orders made by consent on 4 November 2015 stand without further addition.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Small

Date:  11 November 2015