Akston & Boyle 2010 FamCAFC 56

The case involved an appeal by a mother that a decision by a trial judge concerning an assessment of unacceptable risk of harm to a child from the father’s substance use was flawed.

A child aged 10 years was on a shared care arrangement where the child lived week about with each parent.  The couple had commenced cohabitation when the mother was aged 15 years and the father was 19 years (young parent).  The child was born with severe drug withdrawal.   Both parents had a history of using multiple drugs in the early years, and both had criminal convictions.  The parents separated when the child was aged 2 years.  The child had been in the primary care of his father for some years while the mother worked, and the child was removed from the care of the father on three occasions.  During the period in the father’s care there were reports of homelessness, neglect, severe financial issues, drug abuse, the child being exposed to drug users, and emotional and physical abuse.  The child was described as very vulnerable and needy, exposed to maltreatment, lacking proper hygiene and care, and not receiving appropriate emotional nurturing for much of his life.

The father had been on a methadone programme for several years, and he maintained this was to treat his back pain.  There was evidence that he had misused methadone about 2 years before the court hearing.  The mother considered that the father was not rehabilitated as he continued to use methadone which she considered to be a hard drug.  The father acknowledged continued use of cannabis and alcohol.  The mother complained that the orders did not include adequate monitoring of the father’s drug use (test for substances).

The child was transferred to the mother’s primary care when the child was aged 6 years and the mother demonstrated that she had been substance free for two years and had re-partnered in a stable relationship.

When the child was aged 10 years the father applied for the child to spend time equally with both parents.  The mother appealed on the grounds that the father’s drug use had not been properly considered, and that the child was exposed to an unacceptable risk.  The case was remitted for a re-hearing.

A family consultant reported that there were regular reports that the father was drug affected, consumed drugs during supervised visits, became aggressive and got into fights, screamed abuse at neighbours, and exposed the child to drug users (personality domineering).  The father was dependent on the child, and the father coached the child to demonstrate love towards him (parenting style dependent).

The family consultant recommended that the child live with the mother and spend time with the father.

The appeal judge found that a claim by the father that he had been drug-free for 5 years was incorrect (credibility).

The appeal judge found that the trial judge gave excessive weight to an opinion that the mother’s agreement for the child to spend three weeks during school holidays with the father showed that the mother believed the father to be drug free .

The appeal judge considered that the assessment of risk that the father might relapse into further drug use was inadequate and unacceptable.

The appeal judge found that the trial judge gave insufficient weight to the recommendations of the family consultant, and did not give adequate reasons for not accepting those recommendations.

The appeal was allowed.