MOTHER SEEKS TO DISCHARGE PARENTING ORDERS DUE TO FATHER’S FALSE DRUG RESULTS
Gibson & Butler [2020] FCCA 2770 (4 September 2020)
This case involves a mother seeking the court to discharge the previous parenting order entered into by parties due to the discovery that the father’s drug test showed positive results.
Facts:
The parties entered into consent orders where he parents would have equal shared parental responsibility, and the children would spend time with the father in school term times, in week one, after-school care, or 4pm, on a Friday until the commencement of school on a Monday, and in term 2 in week 1 on the same basis, and then in week 2 to the conclusion of after-school care on Wednesday at 4pm until the commencement of school on Thursday.
The mother’s application is to discharge those orders and to move to an arrangement where she has sole parental responsibility and where the children continue to live with her and have only supervised time with the father. The mother says that the consent orders she entered into were entered into on the basis of the representations contained in those documents as provided by the father that he had undertaken testing and that the testing was negative. The mother has subpoenaed the drug testing facility and it is clear that the tests were, in fact, positive.
The father’s submission agreed that he has got mental health concerns, but he said these mental health concerns are a consequence of the mother’s conduct in trying to limit his time with the children.
Issue: Should the parenting orders be discharged?
Law:
Analysis:
The court is satisfied that the mother has acted very reasonably in that when she believed she had seen clear drug tests, and that the father was seeking mental health treatment, she consented to unsupervised time, and that she has only now come to the Court when it has become apparent that the father mislead her by providing information about the drug tests which, at the very least, was not full and accurate, and where he agreed that he did not give her the true information because he knew that if she and the ICL had the true information about his drug use, it would or might impact on his seeing the children.
Unfortunately, it appears that the combination of mental health concerns and drug use, together with the consequences in terms of his ability to spend time with the children, are having a very deleterious effect on the father, and there is a risk that this will lead to a downward spiral.
Conclusion: In those circumstances, the court propose to make orders in accordance with the minute of order proposed by the ICL and supported by the mother. They are, in effect, to discharge the prior orders; have the children live with the mother; have FaceTime every Tuesday between 5.45pm and 6.15pm; have the parties apply to a contact centre, and when they are able to, have four hours every alternate weekend, and any such additional time as can be agreed.
