Roth and Roth
[2008] FMCAfam 781
•25 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
ROTH & ROTH [2008] FMCAfam 781
FAMILY LAW – Interim parenting application – drug testing – urinalysis – hair testing – evidence of toxicologist – parenting and drug addiction – science of drug testing – use of scientific research – judicial notice.
Family Law Act 1975, ss.60CC, 69ZN, 69ZT
Evidence Act 1995, s.144
Baldwin & Francis Ltd v Patents Appeal Tribunal (1959) AC 663
Brereton, MLF 7709 of 2001, 20 June 2003 (unreported)
Gerhardy v Brown (1985) 159 CLR 70
Goode and Goode (2006) FLC 93-286
H and H (1995) FLC 92-598
KB and TC (2005) Fam CA 458
Patsalou and Patsalou (1995) FLC 92-580Altobelli T, The Effective use of Social Science Research in Family Law in Australia 12th National Family Law Conference Handbook, 123.
Barnard M., Drug Addiction and Families, London: Jessica Kingsley; 2007.
Cirimele V, Amphetamine Determination in Hair in Kintz P (ed), Analytical and Practical Aspects of Drug Testing in Hair, CRC Press, 2006 at 144.
Edney D & Deam D, Drug Testing in Family Law, (2006) 80(4) Law Institute Journal 48.
Heydon J, Cross on Evidence, 7th Australian ed, LexisNexis Butterworths, 2004.
Kintz P, Villain M and Cirimele V, Hair Analysis for Drug Detection, Ther Drug Monit, 2006 June, 28(3).
Makkai T., Drug Use Monitoring in Australia (DUMA); Drug Detection Testing, Research and Public Policy Series No 25, Australian Institute of Criminology, Canberra, March 2000
Mullane G, Evidence of Social Science Research: Law, Practice and Options in the Family Court of Australia (1998) 72 ALJ 434
Applicant: MS ROTH
Respondent: MR ROTH
File Number: SYM 8251 of 2006
Judgment of: Altobelli FM
Hearing date: 11 July 2008
Date of Last Submission: 11 July 2008
Delivered at: Sydney
Delivered on: 25 July 2008 REPRESENTATION
Solicitor-Advocate for the Applicant: Mr Cameron
Solicitors for the Applicant: Cameron Gillingham Boyd
Solicitor-Advocate for the Respondent: Mr Gray
Solicitors for the Respondent: Curtis Delaney Gray ORDERS
(1)Leave is granted to the mother to make an oral application to vary the orders made on 23 October 2007 and 30 April 2008.
(2)The mother’s oral application is dismissed.
(3)The father is restrained from cutting his hair during the 6 month period concluding on 1 February 2009.
(4)The father’s time with [B] pursuant to any orders under the Family Law Act1975 is conditional on the father submitting (at his own cost) to a urine test for the presence of illegal drugs and/or substances, and for the purposes of such testing:
(a)The provision of the urine sample is to be personally supervised and observed by a qualified medical practitioner or their authorised delegate; and
(b)The original or copy of the results are to be made available to the mother’s solicitors by 5pm on the business day immediately after receipt of the same; and
(c)The mother’s solicitor is authorised to speak with the father’s referring medical practitioner and/or testing facility about the test results.
(5)The urine testing pursuant to order 4 above shall take place:
(a)On 8, 13 and 18 August 2008;
(b)
As from 1 September 2008 and concluding no later than
31 March 2009, within 24 hours of being requested to do so by the mother’s solicitor, provided such request must not be made more than once a month.
(6)The father’s Contravention Application filed 29 April 2008 is adjourned for mention or possible hearing to 17 September 2008 at 10am, the date of hearing of the parties’ application for alteration of property interests.
(7)Leave is granted to relist the matter on 7 days notice in the event that the urine sample detects the presence of illegal drugs and/or substances.
(8)I note that [B] will be travelling with her father for a skiing holiday from about 8 August 2008 and that on 8 August, whilst in Sydney, [B] will be attending the Cirque du Soleil on the Friday afternoon.
IT IS NOTED that publication of this judgment under the pseudonym Roth & Roth is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEYSYM 8251 of 2006
MS ROTH Applicant
And
MR ROTH Respondent
REASONS FOR JUDGMENT
Introduction
1.
The snow at Perisher Valley is particularly good this season. That may be one reason why the father in this case, Mr Roth, is so keen to take his 5 year old daughter, [B] (born 23 December 2002), there from
8 August 2008. Indeed this trip was explicitly contemplated in the consent orders that [B]’s father, and mother Ms Roth, entered into on 23 October 2007. Order 2(d) states:
2. That [B] live with the father at the times set out herein and shall live with the mother at all other times: -
(d) For one week in the second half of August or in September 2008 for the purposes of a skiing holiday, the father to give the mother not less than fourteen (14) days notice of the proposed dates and arrangements for the holiday.
2.From the Mother’s perspective, however, those same orders imposed certain clear obligations on the father which, she says, he has not complied with. Those orders provide:
10. That the father shall be restrained from using illicit drugs of any kind.
15. That the father undergo hair testing in February 2008, July 2008 and February 2009 and in implementation of such order:
(a) The father shall attend upon the practice of Dr. D [address omitted] as close as practicable to the 1 February 2008, 1 July 2008 and 1 February 2009 for the purpose of giving a sample of his hair.
(b) The testing shall be carried out by the Victorian Institute of Forensic Medicine, it being noted that that organisation will provide to Dr. D a chain of custody collection kit for such testing.
(c) The testing shall test for the presence of amphetamines, cannabis and cocaine and in respect of the test in February 2008 shall test for the four month period prior to the test and in respect of the test in July 2008 and February 2009 shall test for the six month period prior to the test.
(d) The mother shall pay the cost of such testing, including the cost of the appointment with Dr. D for collection, except in the event of a positive test, the father shall be responsible for the cost of the test.
(e) The solicitor for the mother shall instruct the Victorian Institute of Forensic Medicine in writing and provide a copy of that correspondence to the father or his solicitor.
16. In the event that the father fails to attend to provide a sample by 14 February 2008 (in respect of the February 2008 testing), by 15 July 2008 (in respect of the July 2008 testing), by 14 February 2009 (in respect of the February 2009 testing) then the father’s time with [B] is suspended.
Background
3.In the consent orders made 23 October 2007 the parents agreed that they would have equal shared parental responsibility, that [B] would permanently live with her mother, and that she would live with her father for periods defined in the orders. As [B] commenced school in 2008 she lives with the father for 2 weekends out of 3 on a 3 week cycle during the school term, as well as for defined time during the school holidays.
4.The father is a [occupation omitted] who lives at [omitted] in the New South Wales Hunter Valley. The mother is a part-time [occupation omitted] consultant living in Newcastle. During the proceedings that led up to the consent orders made 23 October 2007, Dr Lennings, the psychologist appointed under Rule 15.10 of the Federal Magistrates Court Rules, prepared a report that explored issues of the father’s alleged drug abuse.
The Problem
5.
The matter came before me on 30 April 2008 as a result of the Contravention Application filed by the father the previous day.
Mr Cameron, appearing for the mother, explained to me that the mother became aware on 18 April 2008 that the hair testing undertaken by the father on 15 February 2008 pursuant to the October 2007 orders had resulted positive for pethidine. She thereupon suspended [B]’s time with her father.
6.The Certificate of Analysis dated 27 March 2008 provided by the Victorian Institute of Forensic Medicine, which was in evidence before me, establishes that 40mg of hair having a length of 3cm was tested indicating the presence 0.2 ng/mg of pethidine. Mr Cameron conceded that it was not one of the substances contemplated by order 15(c). Nonetheless, he submitted it was an illegal narcotic substance with addictive qualities that was used primarily as a pain-killer in hospitals, but which the father could be using as he was not expecting it to be detected using the tests that were ordered. On behalf of the mother he expressed her concerns that the father had reverted to his previous drug usage, and that it was necessary to protect [B] from this.
7.
Mr Gray appeared for the father who strenuously denied using pethidine and had no idea why it would be found in his hair.
He submitted that pethidine was not a stimulant, was expensive and difficult to obtain, and would be a very odd choice as a recreational drug. He submitted that the hair testing was defective, and specifically raised doubts about the chain of custody. I observe, however, that the Certificate of Analysis specifically states that the sample was “received with seals intact” which does limit, though not eliminate, the possibility of a break in the chain of custody.
8.The father’s application was supported by his affidavit sworn 29 April 2008 in which he gives evidence about: [B] not being made available to him in accordance with the orders; denying taking any illicit drugs; explaining that the only time he had used drugs or medicine since the orders were made was the occasional nurofen or panadeine when he had damaged a tooth; and that he has been treated by a dentist for the damaged tooth including receiving an anaesthetic injection when the tooth was pulled.
Orders made 30 April 2008
9.As the evidence before me did not enable me to make any conclusions and as the mother had not had an opportunity to file an affidavit, I made the following orders on 30 April 2008.
1.That the father attend upon the rooms of Dr. D at 7.50 a.m. Monday 5 May 2008 to provide an hair sample.
2.From the date of this order up until the appointment to provide the hair sample, the father is restrained from cutting or in any way shortening the length of his hair.
3.The hair testing shall test for the same range of drugs as tested in the report of the Victorian Institute of Forensic Medicine dated 27 March 2008.
4.The mother shall pay the cost of the test, including the appointment with Dr. D for collection, except in the case of a positive test for any of the drugs tested for, the father shall be responsible for the cost of the test.
5.The mother shall provide copies of any correspondence forwarded to Dr. D or the Victorian Institute of Forensic Medicine in relation to the testing to the father or his solicitor.
6.The father authorises the mother to collect the results of the test from Dr. D when it is available.
7.The mother shall provide to the father, or the father's solicitor, a copy of the test result within 24 hours of it coming into her possession.
8.The father to undertake urinalysis, such testing to test for amphetamines, cannabis, cocaine and opiates (including pethidine) before close of business Thursday 1 May 2008 and the father or his solicitor provide the result forthwith to the wife's solicitor.
9.In the event of a positive test result the father's time with [B] is suspended.
10.In the event of a positive test result both parties advise the associate to Federal Magistrate Altobelli to request an urgent re-listing of the matter.
11.The parties undertake enquiries and obtain information satisfactory to the parties on the issues of:-
(a)The method and accuracy of the testing, including the capacity for a drug to have broken down in its constituency from another drug.
(b)Confirmation of the testing process, including:-
(i)Accuracy of the chain of custody.
(ii)Policy regarding obtaining and making available a "B" sample for testing by an alternate testing provider.
Matter Relisted
10.
The matter then returned before me on 11 July 2008 pursuant to the leave I granted to relist in the above orders. Mr Cameron for the mother sought orders the effect of which would be to cease overnight time until testing established that the father was drug-free for a period of 3 months. In order to implement this order, further hair testing needed to be ordered. Mr Gray on behalf of the father opposed this.
He proposed that the October 2007 orders simply continue but that, in addition, the father would be prepared to undertake urine tests before and after the proposed skiing trip with [B]. By 11 July 2008 both parties had filed affidavits, as had Ms S a Senior Toxicologist from the Victorian Institute of Forensic Medicine. In addition documents were produced on subpoena by the father’s treating doctor, Dr D.
Urine Test
11.Pursuant to my orders of 30 April 2008 the father had undertaken urine testing at [omitted] Pathology on 5 May 2008. The report dated 6 May 2008 did not detect any of the drugs screened but indicated a level of urine creatinine that was below the reference range (i.e. 1.69 instead of >1.76 mmol/L). Mr Cameron submitted that this level of creatinine indicated that the urine sample had been diluted. The father denied this and submitted that the creatinine level was only marginally out of the range.
The second hair test
12.
On 5 May 2008 the father provided a further hair sample to Dr D, who then sent it to the Victorian Institute of Forensic Medicine. It was received by them on 9 May 2008 and their Certificate of Analysis dated 28 May 2008 reports that 33mg of hair having a length of 0.5-1cm was tested and codeine was found in the quantity of 0.1 ng/mg. Now
Mr Cameron’s complaint about this test was not so much the presence of codeine, which even he conceded could be attributable to taking a painkiller such as panadeine, but rather that the father had cut his hair since the order was made on 30 April 2008, thus limiting the period of time in respect of which drugs could be detected in the hair. He submitted that on 30 April 2008 the length of the father’s hair was at least 2cm. By thus cutting his hair the father was not complying with the court orders and was seeking to avoid detection. On behalf of the father it was submitted that the presence of codeine was, indeed, consistent with his consuming panadeine. He strenuously denied cutting his hair after 30 April 2008 and points out that according to Victorian Institute of Forensic Medicine instructions, the hair is taken from the nape (i.e. the back of the neck). Thus, whatever might have been Mr Cameron’s impression about the father’s hair length, if it was based on anything other than the nape it was irrelevant.
Evidence of the Senior Toxicologist
13.It appears that on 10 July 2008 Ms S, B. App. Sc, a Senior Toxicologist from Victorian Institute of Forensic Medicine made an affidavit which purports to satisfy order 11 made 30 April 2008. I also had in evidence the correspondence that preceded the report.
14.The evidence is important so I propose to reproduce the contents of the affidavit in full.
Opinion:
1.I am a senior toxicologist and employed in the Toxicology Department in the Victorian Institute of Forensic Medicine (“VIFM”).
2.My qualifications are: Bachelor of Applied Science, Phillip Institute of Technology (now known as the Royal Melbourne Institute of Technology), Victoria.
3.I have 18 years experience in Forensic Toxicology and have been a senior toxicologist since 2000. I am a member of the International Association of Forensic Toxicologists (TIAFT).
4.The VIFM regularly undertake hair testing to determine the presence of illicit drugs in criminal cases, coronial cases and also in family law matters. If a subject has consumed illicit drugs in the past, their presence is recorded in the hair and can be identified through scientific testing.
5.Hair testing is a reliable method of testing drug use over a period of time and to the best of my knowledge the form of hair testing undertaken by us is used extensively in Europe and North America and is seen as an alternative drug test to urinalysis.
6.Hair testing is an adjunct to urine and blood testing to determine drug use over a period of time and in particular for time periods greater than 72 hours after the consumption of the drugs. Urinalysis can generally detect drug use within the previous 24 to 72 hours for most drugs.
7.Hair analysis can detect drug use; drug residue remains permanently entrapped in the hair even following abstinence or partial abstinence from drug use.
8.Hair grows on average one centimetre per month and hair testing can be used segmentally to establish drug usage over a period of time. The longer the hair being tested the greater the span of time over which drug consumption can be monitored and proven. For example, hair that is 30 centimetres long will provide samples for testing drug use of around two and a half year time frame.
9.Only a pencil thickness (approximately 50 strands) of hair is required to be taken from the subject and it is relatively un-invasive.
10.The VIFM is able to undertake testing for the presence of a wide range of drugs in hair if provided with an appropriate sample. The mass of hair acquired from [Mr Roth] for both hair analyses were satisfactory and suitable for analysis. The testing process is a highly specialised analysis with a set preparatory stage followed by extraction of drugs in the hair sample with analysis performed using quantitative high performance liquid chromatography coupled with tandem mass spectrometry (LC/MS/MS). It can distinguish between a wide range of licit and illicit drugs – such as to differentiate and confirm between methamphetamine, ecstasy, methadone, heroin, codeine and morphine.
11.The VIFM received a specimen of hair from [Mr Roth] on 03/03/2008 (VIFM case number E033/2008) and a specimen of hair from [Mr Roth] on 9th May 2008 (VIFM case number E094/2008) with appropriate chain of custody. The department of Toxicology at the Victorian Institute of Forensic Medicine is an accredited laboratory with ISO17025 accreditation in forensic science and ensures that at all times that chain-of-custody procedures are adhered to and followed.
12.VIFM case number E033/2008: Approximately 3 cm of [Mr Roth’s] hair was analysed as non segmental hair analysis. Approximately 3 cm (from root end) represents approximately 3 months growth. This represents the approximate time-frame from 15/11/2007 to 15/02/2008.
13.VIFM case number E094/2008: Approximately 0.5-1 cm of [Mr Roth’s] hair was analysed as non segmental hair analysis. Approximately 0.5-1 cm (from root end) represents approximately 2 weeks to one month of hair growth. This represents the approximate time-frame from 05/04/2008 to 05/05/2008.
14.There is no overlap in regards to time frame for both of the hair samples. They distinctly have different time lines.
15.There is no correlation between concentration of drugs detected in the hair with consumption and frequency, therefore the concentration does not represent acute or chronic use.
16.There was no interference in the analysis from [Mr Roth’s] hair specimen and the analysis of [Mr Roth’s] hair sample was satisfactory and in accordance with VIFM’s analytical procedures.
17.The laboratory analysed both of [Mr Roth’s] hair samples for some of the more common drugs of abuse.
18.VIFM’s screening and quantification confirmation includes analysis for these drugs: 6-monoacetylmorphine, 7-aminoclonazepam, 7-aminoflunitrazepam, 7aminonitrazepam, alprazolam, amphetamine, benzoylecgonine, clonazepam, cocaethylene, cocaine, codeine, diazepam, ecgonine methyl ester, flunitrazepam, methylenedioxyamphetamine (MDA), methylenedioxymethamphetamine (MDMA), methadone, EDDP (metabolite of methadone), methamphetamine, morphine, nitrazepam, nordiazepam, oxazepam, oxycodone, pethidine, temazepam, tramadol, zolpidem, Δ9-tetrahydrocannabinol and Δ9-tetrahydrocannabinol-carboxylic acid.
19.VIFM case number E033/2008: Pethidine was detected in Mr Roth’s hair sample. Pethidine is a synthetic narcotic analgesic related pharmacologically to morphine and methadone. It is sometimes known as Meperidine.
20.Pethidine can only be obtained via a prescription or administered by hospital/emergency staff.
21.VIFM case number E094/2008: Codeine was detected in Mr Roth’s hair sample. Codeine is a narcotic analgesic related closely to morphine but having approximately one-tenth the activity of morphine as an analgesic and possessing anti-tussive activity.
22.Codeine is present in numerous proprietary medicines as tablets and syrups often in combination with other analgesics such as aspirin and paracetamol.
23.It is highly unlikely that the pethidine and codeine in Mr Roth’s hair could be ‘false positive’ results. The targeted screening for drugs of abuse in hair using quantitative high performance liquid chromatography coupled with tandem mass spectrometry (LC/MS/MS) is a validated confirmatory semi-quantitative method which shows specific, accurate and precise determination for all compounds analysed and not a screening immunoassay technique.
24.The hair collection kits which were forwarded to Dr. D contained detailed instructions on the collection of hair. It does not stipulate that two samples be collected. There is no remaining hair for any further hair analysis from either of the hair samples received at VIFM (VIFM case number E033/2008 and VIFM case number E094/2008)
25.As far as we are aware, the Victorian Institute of Forensic Medicine is the only accredited laboratory in Australia to conduct targeted hair analysis for the most common drugs of abuse.
Documents produced by Dr D, the father’s doctor
15.The documents produced by Dr D in response to a subpoena consist of a letter to Mr Cameron, the mother’s solicitor, dated 12 June 2008; a document entitled ‘complete record’ relating to the father; some handwritten notes; the 2 Victorian Institute of Forensic Medicine Certificates of Analysis. I reproduce the 2 dated entries under the heading ‘Progress Notes’:
Monday May 5 2008 18:22:53
Dr. D
Specimen collected for hair analysis from nape of neckhair length 5-6mm
Patient insistent that hair be tagen [sic] from nape despite its short length
Large area required to be shaved – explained same to patient but not consenting to longer hair on crown being taken – advised that does not want a second sample just a single sample sufficient
Tuesday June 24 2008 11:29:40
[Ms D] RN
Avant (MDO), Mr M [phone number omitted], contacted for advice as report requested by [Ms Roth’s] solicitors regarding hair length.
Medical Defence Organisation advised that the patient’s consent should be obtained prior to providing report.
[Mr Roth] contacted. He clearly stated that he does not consent to information being provided to the requesting solicitor other than the test result as required by court order.
16.I reproduce 2 paragraphs of Dr D’s letter to Mr Cameron.
He presented for the purpose of hair collection to test for the presence of various drugs. At the time of the consultation of 05MAY08 [Mr Roth] was noted to have short cropped hair on the lateral and posterior aspects of his scalp and longer hair towards the superior aspect of the scalp.
The written instructions from the Victorian Forensics Laboratory are that hair should be taken from the nape of the neck. At the time of sample collection I discussed with [Mr Roth] that the hair on the nape of the neck was very short (approx 5mm in length). I advised that it would be easier to obtain a sample of hair from the crown but [Mr Roth] declined to consent to this and was insistent that the sample be taken from the nape as instructed by the testing laboratory. Therefore, I took a large area, some 5cm x 3cm, of hair obtained via shaving with a sterile scalpel to obtain a sufficient specimen for testing.
The issue
17.In effect the mother in the proceedings seeks an order that, on an interim and urgent basis, varies the existing orders so that [B] would not have overnight time with her father until such time as the hair testing establishes he is drug free. Clearly she believes that there is an unacceptable risk of harm or abuse to [B] if this does not take place, and thus she needs to be protected from this: s.60CC(2)(b). She raises some other matters relating to [B]’s care that I will deal with at the end of these reasons. In my opinion it is clear that these other matters are secondary to her concerns based on the father’s alleged consumption of drugs.
18.The question I have to decide, on the basis of very limited evidence before me, is whether it is in [B]’s best interests to vary the existing orders so as to protect her from harm arising from being subjected to abuse or neglect, and otherwise having regard to s.60CC Family Law Act.
The Applicable Law
19.The relevant law is contained in s.60CC of the Family Law Act 1975 which states:
1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child' parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
Parenting and drug addiction
20.In a case where it is alleged that one or both parents, or any person involved in the care of a child, are addicted to drugs, this is highly relevant because, potentially:
·It might undermine or even destroy the meaningful relationship that exists between child and parent (s.60CC(2)(a)); and/or
·It creates a need to protect the child from physical or psychological harm from being subjected to, abuse, neglect, or family violence attributable to the drugs (s.60CC(2)(b)); and/or
·It adversely impacts on the nature of the relationship of the child with the drug dependent person (s.60CC(3)(b)); and/or
·It impairs the capacity of that parent or person to provide for the needs of the child: (s.60CC(3)(f)); and/or
·It demonstrated a poor attitude to the child and to the responsibilities of parenthood (s.60CC(3)(i)); and/or
·It might lead to situations of family violence (s.60CC(3)(j)).
21.From a social science perspective, parenting and drug addiction are a potentially dangerous mix for the child. Drug dependence creates a pre-occupation that is inconsistent with responsible parenthood. The compulsion for drugs is not inconsistent with parental love, but is often inconsistent with the ability to meet the needs of children. Choices are often made that compromise the ability of parents to protect their children. Funding and maintaining a drug habit creates instability in family life. Children can often become secondary priorities, and thus vulnerable to harm. Routines are often disrupted. Sometimes drug dependency leads to exposure to criminal behaviour and the criminal law. Even if a parent is physically present for a child, drug dependence often leads to emotional unavailability for children, which is sometimes the most damaging impact. In short, parental capacity is grossly compromised. (See generally Barnard M., Drug Addiction and Families, London: Jessica Kingsley; 2007.)
The science of drug testing
22.A useful resource in the understanding drug testing is a paper by Makkai T., Drug Use Monitoring in Australia (DUMA); Drug Detection Testing, Research and Public Policy Series No 25, Australian Institute of Criminology, Canberra, March 2000. There are 3 methods of drug testing: urinalysis, blood and hair. Table 2 on page 3 of the paper compares the 3 methods:
Table 2: Comparison of Commonly Used Specimens for Drug Analysis
| Specimen | Ease of Collection | Stability of Drugs | Average Window of Exposure | Sample Preparation Before Analysis | Possible Adulteration |
| Blood | Most Invasive | Variable | Recent | Minimal | No |
| Urinea | Moderate | Stable | 1-3 days | Minimal | Yes |
| Hairb | Less Invasive | Stable | 7-90 days | Significant | No |
a The window of exposure is up to 30 days for cannabis, and two weeks for benzodiazepines.
b The window of exposure can be up to a year; it depends on how often you get your hair cut.
23.Thus urine testing, which is relatively low cost, only provides information relating to very recent drug use. By contrast hair testing, which can be relatively expensive, can provide information about longer term drug use behaviour. Blood testing is more intrusive, and the detection time is much lower as most drugs are rapidly eliminated from the blood path by the body’s metabolic system and by excretion into urine.
24.Urine testing is a 2 step process – the screening test, and the confirmatory test. The former aims to maximise the chance of finding a drug, whereas the latter is designed to ensure that a positive screen is in fact a true positive screen. The higher the dose of drug taken, the greater the frequency of use, the more likely it is to be detected.
25.There are four possible outcomes from a test:
(1)True positive (the drug is present)
(2)True negative (drug is not present)
(3)False positive (drug detected but drug not present)
(4)False negative (drug not detected but drug if present)
26.The research referred to at page 18 of the paper indicates that an average false positive rate across a number of common drugs was only 1-2 percent.
27.Another useful resource is Edney D & Deam D, Drug Testing in Family Law, (2006) 80(4) LIJ 48. This article contains a useful description of some of the characteristics of the common drug classes, and provides examples of reports. In particular, it explains that creatinine, which is a breakdown product of muscle tissue, is excreted in a constant amount in the urine each day. If a person passes only a small amount of urine each day, then the creatinine is excreted into this smaller volume thus raising the concentration of creatinine. However, a person excreting a large volume of urine will have a low level of creatinine. This is why creatinine levels are measured in urinalysis drug testing – an unusually low result may indicate that a urine specimen was diluted with water.
Hair testing
28.Hair testing has been considered by the Family Court of Australia in an unreported decision of Morgan J in Brereton, MLF 7709 of 2001, 20 June 2003. Her Honour’s judgement sets out the evidence of Professor Drummer who was the head of Scientific Services at the Victorian Institute of Forensic Medicine. Paragraphs 9-14 are particularly useful in this context and are reproduced below:
The Evidence of Professor Drummer.
9.Professor Drummer swore an affidavit and was cross-examined. He is a forensic pharmacologist and toxicologist and has been involved in the analysis of drugs and poisons for over 25 years. His expertise in the area was not challenged. He has particular expertise in relation to the use of hair for drug detection. He is an internationally recognised expert in the area. He is employed at the Victorian Institute of Forensic Medicine as head of Scientific Services. He is also an adjunct professor in the Department of Forensic Medicine at Monash University.
10.The major thrust of Professor Drummer's evidence was that the benefit of hair testing was what he described in oral evidence as a "longer window of opportunity" for drug testing. He said that traces of most drugs disappear relatively quickly in blood and urine. In particular urine tests will show a history of most drugs of between 1 to 4 days. He said that traces of most drug groups remained trapped in hair for significantly longer periods and that hair analysis was likely to provide a profile of drug use for between one week and up to three months or more. He said that hair testing provided evidence of drug use or abstinence up to a three-month period depending on the length of hair whereas urine tests were good at checking drug use "over the last few days".
11.In cross-examination Professor Drummer described the process of drugs for "getting into the hair". He said that the major factor was the incorporation of the drug in a growing hair follicle under the skin as a result of its contact with the blood containing the drug. He said he believed there was also absorption of the drug in the epidermis or the skin adjacent to the scalp and the blood vessels that permeated the skin underneath the visual part of the skin. He said that during the growing phase of the follicle an absorption process for drugs was created. The other process includes some absorption in a pore of oily secretions which are usually in the skin layer below the skin surface. He said the drug was effectively bound up and trapped within the protein structure of the hair itself. In oral evidence Professor Drummer said that if, for example, the hair was 1 cm long it would contain evidence of drugs the person had been using in the month or so prior to the collection. He said it took about five days for ingestion of a drug to appear in the hair.
12.Professor Drummer agreed with the opinion expressed by another expert in the area that various other factors such as growth rate, ethnicity, colour and type of hair, and gender would affect the amount of a drug imprisoned in the hair. All of that he said affected the outer surface concentration of the drug whist the drug would still be present in the internal part of the hair. Normally, he said, hair testing was used to probe whether a person had access to drugs or not rather than how much was being consumed over a particular time period. Throughout his evidence Professor Drummer stressed the different objectives of the two forms of testing with hair analysis being preferred method of establishing a history of exposure to a drug and urine analysis being preferred method of establishing recent use and dosage. Professor Drummer agreed in general terms with the proposition that there were significantly greater internationally recognised standards as to urine analysis and that drugs were easier to detect in urine because the concentration was greater than in the hair. However, he went on to say that one could not make comparisons between urine and hair. He said "they certainly are different specimens, have different issues".
13.Professor Drummer was vigorously cross-examined about the possibility of external factors contaminating the sample. He readily conceded that there could be external environmental contamination which would result in a false positive and that that risk was higher than in the case of urine analysis. He agreed that if a person was in an environment where illicit drugs such as cocaine were being used by another person or persons and being vaporised through the air or rubbed through the hair then the outer layers of the hair would contain residues of that drug. However he said that the best method to establish that and the method employed in his laboratory was to wash the hair thoroughly and then to analyse the washings to determine whether there was any external contamination of the sample. In re-examination he said that in his laboratory that was always the protocol whether contamination was suspected or not.
14.In re-examination by senior counsel for the wife he agreed that if the husband's evidence that he did not use drugs himself, that he did not associate with drug users and that there would never be drugs on his premises was true that would reduce the opportunity for any environmental contamination and that in those circumstances anything in the hair would be from external use. Any drug that was within the internal shaft of the hair after that process would then be as a result of contact with the blood as the follicle grew into the hair shaft. Professor Drummer agreed that an estimation of dosage was not possible with hair testing which provided evidence of exposure to drugs over a period of a month or two or three depending on the length of the hair. It could not provide evidence of weekly changes in drug consumption.
29.Morgan J concluded about Professor Drummer’s evidence:
19.On the basis of the evidence of Professor Drummer to which I have referred I am satisfied that the risk of a false positive test if the test is conducted in laboratory with the standards of his laboratory, is not, of great significance. I am also satisfied that the risk of a false negative is lower than with urine analysis. Professor Drummer gave evidence of techniques which may be used to achieve a false urine analysis. Once again this risk is significantly decreased if the urine sample is collected under supervision and at an appropriate facility. That is the case here.
20.In my view the critical evidence is the concession by Professor Drummer, an impressive professional witness, that frequent urine analysis will establish drug use or alternatively non-use over a significant period. Further the results are obtainable more quickly than the results of hair analysis.
21.The testing would on, Professor Drummer's evidence, establish use but not dosage for a period of approximately 1 to 3 months depending on the length of the hair.
22.I am satisfied on the basis of Professor Drummer's evidence and several United States authorities relied upon by senior counsel for the wife that hair analysis is a recognised and effective method for testing of long-term drug use in appropriate circumstances. However for the reasons indicated I am not satisfied that those circumstances pertain in this matter.
30.The scientific research suggests that hair is best collected from the area at the back of the head, called the posterior vertex, as close as possible to the scalp, because in this area there is the least variation in growth rate (approximately 1.0cm per month), the number of hairs in the growing phase is more constant, and the hair is subject to less age – and sex – related influences (see: Kintz P, Villain M and Cirimele V, Hair Analysis for Drug Detection, Ther Drug Monit, 2006 June, 28(3) at 442-6; Cirimele V, Amphetamine Determination in Hair in Kintz P (ed), Analytical and Practical Aspects of Drug Testing in Hair, CRC Press, 2006 at 144).
31.The most crucial issue facing hair analysis is avoiding false results as a result of passive exposure to the drug. It seems that in most reputable laboratories, the hair testing commences with washing to avoid external contamination: Kintz P, et al, Hair Analysis for Drug Detection, Ther Drug Monit, 2006 June; 28(3) at 443. The benefits of drug testing are usefully summarised by Kintz, Villain and Cirimele at page 443:
By providing information on exposure to drugs over time, hair analysis may be useful in verifying self-reported histories of drug use in any situation in which a history of past rather than recent drug use is desired. During control tests of hair, a drug addict is not able to hide the fact of drug abuse. In the case of an addict who takes drugs every few days, this fact cannot be proved by means of urine and blood tests even when the tests are repeated.
Hair analysis can also provide a retrospective calendar of an individual’s drug use. For this, multisectional analysis is required and involves taking a length of hair and cutting it into sections to measure drug use during shorter periods of time.
…
For example, one can perform multisection analysis for people who test positive on an initial screen. This information can be used to validate an individual’s claim of prior drug use or abstinence during the most recent several months.
The most extensive study on sectional analysis for drugs of abuse involved patients in rehabilitation centres. Segmental hair analysis was used to verify both their previous drug history and their recent enforced abstinence. In case of well observance, the lowest drug concentrations must be found in the segments nearest the root, thus confirming decreased drug use or recent abstinence.
…
Hair analysis is suitable for accurately monitoring relative changes in drug intake in the same individual. In several studies, it has been shown that a doubling of drug dose in the same individual results in a doubling of the drug content of the hair, which is not the case for blood and urine drug level.
Use of scientific research
32.
Whilst this scientific material is very interesting and useful in its own right, its real significance is that it provides background to the court which can be used in assessing and understanding the evidence of
Ms S, the Senior Toxicologist from the Victorian Institute of Forensic Medicine, as set out in her affidavit of 30 April 2008. I record, however, that I do not regard this material as evidence in this case. This scientific research is probably not a fact in respect of which judicial notice could be taken under s.144 of the Evidence Act 1995:
144 Matters of common knowledge
(1) Proof is not required about knowledge that is not reasonably open to question and is:
(a) common knowledge in the locality in which the proceeding is being held or generally, or
(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
33.I would not be prepared to say that the matters referred to are “common knowledge” or that its authority “cannot reasonably be questioned”. I concur with the comments of Mullane J, speaking in a non-judicial capacity in Evidence of Social Science Research: Law, Practice and Options in the Family Court of Australia (1998) 72 ALJ 434 at 444:
Cases where the results of particular social science research is ‘common knowledge’ generally or even locally are likely to be very rare. Social science research is not the stuff of conversations on ‘the Emu Plains bus’ or in the public bar of a local hotel. Nor is it likely to be a frequent topic at lunch in judicial common rooms. In the absence of some knowledge of the particular area of social science and of statistics, how would a judge be able to determine that the methodology, interpretation and conclusions of a particular item of social science research is ‘not open to question’?
34.Indeed it is the very nature of both social science and scientific research that it is constantly being questioned, and knowledge is in a constant state of evolution. In any event natural justice has not been extended to the parties pursuant to s.144(4) of the Evidence Act 1995. Whilst these proceedings are governed by Division 12A of Part VII of the Family Law Act 1975, s.69ZT, with its selective exclusion of the applicability of various provisions of the Evidence Act 1995, s.144 is not excluded. There are, of course, good reasons for having s.144 in its present terms, but one wonders whether implementation of the principles of Division 12A, set out in s.69ZN, would be better facilitated by enhancing the ability of courts to use social science and scientific research in making the best decisions about children. I recognise, however, that there have been cases where the Family Court has considered social science research without necessarily considering the issues discussed above e.g. Patsalou and Patsalou (1995) FLC 92-580 and H and H (1995) FLC 92-598, discussed in Altobelli T, The Effective use of Social Science Research in Family Law in Australia 12th National Family Law Conference Handbook, 123 at 127.
35.In other cases the Family Court has declined to take judicial notice of what might nonetheless be regarded in the social sciences as a generally accepted fact i.e. the benefit to be derived by a child from sibling relationships: KB and TC (2005) Fam CA 458 at paragraph 87.
36.In the present case, however, reference to the scientific literature is an aid to understanding the expert evidence, and to then draw appropriate inferences from it. (Heydon J, Cross on Evidence, 7th Australian ed, LexisNexis Butterworths, 2004 at paragraph [3135]).
37.Considering scientific evidence is not the same as the reception of evidence, and having regard to s.144 of the Evidence Act 1995, it is not the same as taking judicial notice. Indeed Cross on Evidence at paragraph [3120] refers to the example used by Lord Denning in Baldwin & Francis Ltd v Patents Appeal Tribunal (1959) AC 663 at 691 that: “no one ever calls the author of a dictionary to give evidence. All that happens is that the court is equipping itself for its task by taking judicial notice of all such things as it ought to know in order to do its work properly”. It is undeniable that judicial officers sometimes refer to dictionaries in the course of adjudicating cases, but it could not seriously be asserted that s.144 applies to that.
38.There must be another category of information that can sensibly assist decision making in these difficult cases, without the information having the status of either evidence or common knowledge derived from judicial notice. Perhaps in family law a parallel can be found with the High Court’s approach in constitutional cases to judicial notice, even in the post Evidence Act period. Cross on Evidence at paragraph [3045] explains this by reference to comments made by Brennan J in Gerhardy v Brown (1985) 159 CLR 70 at 141-2:
Nevertheless, the modern High Court does appear to have adopted a very flexible approach in informing itself or accepting from the party’s information with a view to finding these facts. Brennan J put it this way:
There is a distinction between a judicial finding of a fact in issue between parties upon which a law operates to establish or deny a right or liability and a judicial determination of the validity or scope of a law when its validity or scope turns on a matter of fact. When a court, in ascertaining the validity or scope of a law, considers matters of fact, it is not bound to reach its decision in the same way as it does when it tries an issue of fact between the parties. The validity and scope of a law cannot be made to depend upon the course of private litigation. The legislative will is not surrendered into the hands of the litigants.
It is probably best to treat this process as sui generis rather than try to accommodate it within the scope of judicial notice of notorious facts. The process has been said to turn on the court’s “knowledge of the society of which it is a part”, supplemented by admissions in the pleadings, statements of agreed facts, stated cases and affidavits.
39.
Having regard to the importance of both scientific and social science research in family law parenting matters, perhaps it can also be argued that this is of a category of its own, being neither evidence nor common knowledge? To exclude this knowledge would otherwise lead to determination of the best interest of children being entirely “surrendered into the hands of the litigants”. This is surely inconsistent with contemporary approaches to child-focussed decision making.
Of course precautions need to be taken, and in particular, where possible, the spirit of s.144(4) of the Evidence Act 1995 should be implemented, but that is not always possible in parenting cases in this court. So long as scientific and social science research is not used to make specific findings or conclusions, there is significant benefit to be derived from having regard to this knowledge, even if not referred to by the parties to the proceedings.
Application to this case
40.There are interim proceedings brought on with little notice but with much urgency. Whilst it is important to make decisions about the welfare of [B] it is difficult to do so with untested evidence. The Full Court in Goode and Goode (2006) FLC 93-286 has stated at paragraph 68:
68. … the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
41.There are some uncontested facts in this case:
(1)Pethidine was detected in the father’s hair on 15 February 2008;
(2)The urine test of 5 May 2008 indicated a slightly lower level of urine creatinine;
(3)Codeine was detected in the father’s hair on 5 May 2008.
(4)The father has spent regular time with [B].
42.Moreover the evidence of Ms S the Senior Toxicologist was not challenged, and was produced pursuant to an order made 20 April 2008. At paragraph 15 she confirms that the concentration of drugs detected does not represent acute or chronic use. That provides some limited reassurance. Her evidence discounts the possibility that contamination explains the presence of pethidine in the father’s hair. She describes pethidine as a synthetic narcotic analgesic – in other words a painkiller. She also describes codeine as a narcotic analgesic which is often present in proprietary medicines. I observe that based on my own legal experience, these are not the typical drugs normally encountered in cases where it is alleged that there is an addiction. However the father’s explanation in relation to the use of any form of drugs or medicine since the orders were made is that he has taken occasional nurofen or panadeine when he had a damaged tooth, and that he had an anaesthetic injection when a tooth was extracted. It is a plausible explanation, if true. In relation to the submission that the father was uncooperative as regards the hair testing procedure, as evidenced by Dr D’s notes, I cannot draw this adverse inference against him on the basis of the evidence before me.
43.
The mother raises a number of other issues relating to [B]’s time with her father, in the broader context of the drug abuse allegations.
She refers to various statements allegedly made by [B], to her coming home from time with her father and being unwell and/or unsettled, and generally raises concerns about [B]’s welfare when with her father.
The father’s evidence about his time with [B] is completely different. He finds her to be “happy, loving and communicative. She appears to enjoy her time with me and I ensure she is involved in activities to keep her active, see other family members, teach her writing and plays with friends in the area I live in.”
44.Even if one accepted the mother’s evidence completely, including the veracity of everything that [B] has allegedly said, it does not present a picture of the father as an unavailable parent whose capacity to parent has been compromised as a result of drug dependency. At this particular point in time, whilst there are some important but unresolved issues about parental conflict and trust which are no doubt derived from the father’s past drug use, there is no evidence, at the level of an interim application, that leads me to conclude that the father remains drug dependent or is inappropriately using drugs. Whether this decision is conceptualised as a best interests decision, or an unacceptable risk decision, the outcome is the same – there is no reason to change the existing orders and to impose a restriction on overnights.
45.The fact remains, however, that the mother remains concerned about the father’s drug usage. There are current orders in place for further drug testing, and they are to be implemented with some minor amendments designed to provide greater accountability by the father, and reassurance for the mother. In relation to the proposed skiing holiday, the father has proposed that he undertake urinalysis immediately before, and immediately after, the proposed period. I am also going to require the father to undertake urinalysis at the mid-point of the holiday. Despite him being based in Perisher, it should not be too great an inconvenience for him to provide a urine sample at the nearest collection centre.
46.The mother also has concerns about [B] spending up to 9 nights away from her, the longest period to date. There is no evidence before me that supports her concern. I do not share her concerns. The context will be a skiing holiday with her father. I expect that there will be frequent telephone communications with the mother.
47.Both parents will need to reconsider their respective attitude about the proceedings insofar as they relate to [B]. I will set down for hearing the Contravention Application, but invite the father to consider withdrawing the same in view of the possibility that there will be a finding of reasonable excuse. The mother will need to consider whether she now formally applies to vary the existing orders, and if so on what basis.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Altobelli FM
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