Thursday, 27 November 2008

Federal Magistrates court case: impact of drugs, should monies spent on drugs be added back?

In the recent Federal Magistrates Court case of Hogan and Hogan, Federal Magistrate Altobelli had to consider the impact of the husband's marijuana consumption. The proceedings were both parenting and property proceedings.

In the parenting proceedings, Altobelli FM stated that the issues included:

Does the husband's consumption of cannabis raise any issues about the need to
protect the children from physical or psychological harm from being subjected
to, or exposed to, abuse, neglect or family violence? Related to this, of
course, is whether the husband's consumption of cannabis affects his capacity to
provide for the needs of the children, or perhaps reflect on his attitudes to
the children, and to the responsibilities of parenthood?

In the property proceedings, Altobelli FM stated that the issues included:


Should the husband's expenditure on the purchase of cannabis for his own use be
added back as notional property, on the basis that it is waste?

Principles of impact of drugs in parenting cases

Altobelli FM set out these principles:

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)).


    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.)


    This research is background material to my judgment. It is not evidence.
    It is not material in respect of which I take judicial notice, and I make no
    findings of fact as a result of this material. It is background material, and it
    assists in understanding the expert evidence provided by the Family Consultant.
    One also lives in hope that parents might learn from it.

The husband's drug use

The parties' evidence was like chalk and cheese:


The only issue that arises under this consideration relates to the husband's
consumption of cannabis. In short, and simplifying the husband’s case to a few
words, he says "There is nothing to protect the children from." In effect, he
denies that he has an addiction. He says the children have never seen him smoke
cannabis. He says there is no evidence of actual abuse or neglect of the
children. He says he has complied with the orders that were made by Henderson
FM. He points out that he has held a responsible, full-time job as an
[educational professional] for an extended period of time. He points out that in
all of the wife's evidence, there is minimal criticism of him in terms of his
parenting generally. Finally, his argument is that all of the evidence - his
own, the wife's, and the Family Consultant's - all point to the strength of the
children's relationship with him.
However, from the wife's perspective, she
asserts that the husband has attempted to mislead both the Family Consultant and
the Court about the nature and extent of his consumption of cannabis. She says
this affects his credibility and that, indeed, a finding of addiction is clearly
open on the husband's own evidence, though she concedes that his actual
consumption varies from time to time. Whilst the wife acknowledges that the
husband's consumption of cannabis was a feature of the entire period of their
marriage, she argues that during the marriage she was there to provide a safety
net for the children, but this has become more problematic since separation. The
wife's concerns about the husband's consumption of cannabis is both
retrospective and prospective. Indeed, she argues that the greatest risk to the
children is in the future, and that as they become older, his consumption
becomes increasingly harder to hide and there is a real concern about the poor
role model that he will present to the children.
The husband responds to the
wife's criticisms by pointing out that they are inconsistent with her stated
position in relation to parenting orders. Indeed, he says that her concerns
about his consumption of cannabis are exaggerated and that this is the best
explanation for the wife's own proposal that he spend 4 nights a fortnight with
the children. He points out that the wife does not even seek supervision of his
time with the children, nor does she propose a regime of drug testing.
The
husband's evidence about his consumption of cannabis was presented in a rather
minimalist form. In...his affidavit ..., he states:
I no longer smoke any
cannabis. I have also quit smoking tobacco...


Furthermore he said he has had no cannabis since that affidavit, but
perhaps smoked it the week before that, an event that he described as a "lapse".
The husband was cross-examined at length about this issue. He agreed that
three weeks before the hearing he had smoked a joint of hydroponic cannabis. He
conceded that he had done a fair bit of smoking over the years, that he has
periodically smoked cannabis, but not since the affidavit. Indeed, he agreed
that he had been smoking cannabis for 20 years. When pressed about the
inconsistency of asserting that he no longer smokes cannabis when he had, in
fact, smoked cannabis a week before signing the affidavit, he had to agree that
the evidence before the Court did not give a full disclosure and history of his
consumption of cannabis. He agreed that it was difficult to give up smoking
cannabis.
In cross-examination his evidence was that in 2008 he had smoked
cannabis five or six times. He described it as "an unusual event" possibly
happening every six weeks or so. He asserts that he had not smoked cannabis for
two months before his appointment with the Family Consultant. When it was put to
him that having regard to a 20-year history of consumption it was rather
inconsequential not to smoke for two months, his response was that he did not
know. He certainly agreed that there was nothing remarkable in stopping for two
months. He agreed that he had tried, during that period, to give it up several
times, but without success. He agreed that his consumption of cannabis was a
concern to the wife that she had expressed to him several times, and indeed a
significant matter in the breakdown of their relationship. He agreed that if he
were under the influence of cannabis, and driving a motor vehicle, there would
be a risk to the children. When it was suggested to him that there have been
numerous times when he had been under the influence of cannabis and driving the
children his response was, "Not numerous, but a few times". He said, however,
that this had certainly not occurred in 2008, with or without the children. The
last time he consumed cannabis was at his home, on the balcony. When he consumed
cannabis at the former matrimonial home, it was outside.
The husband's
evidence is that he last purchased cannabis last year, and that his consumption
this year was of cannabis that had been gifted to him by a friend. He gave
evidence that the current price of cannabis is $400 an ounce, but he denied that
it was a very expensive drug to use. He estimated that over a period of 10 years
he had spent $20,000 in the purchase of cannabis for his own use. This was
calculated on the basis of 20 $100 deals each year. During the marriage, he
described his consumption as every few days, but not regularly, and certainly
not daily. He asserted that out of every $100 purchase of cannabis, he would be
able to make 30 joints, when mixed with tobacco. He estimated that a $100 deal
would last him about 10 days. His evidence was that there were periods in the
marriage when he was not consuming cannabis at all.
He was cross-examined
about whether, in his opinion, his consumption of cannabis presented any
"downside" for the children. His response was that he did not think so because
he did not smoke in front of them, or in their presence, it was always outside
and, indeed, they would be in bed. He was firmly of the view that the children
did not know that he was smoking, even though, in all likelihood, both his
clothes and the vehicle he drove smelt of cannabis. His evidence was, in effect,
that the children would not know what cannabis smelt like and that, in any
event, they had never said anything to him. He denied that the consumption of
cannabis had an after-effect on him, except on a few occasions when he became
lethargic. He agreed, however, that the consumption of cannabis assisted him
going to sleep. The husband categorically refuted allegations of the wife that
...... he was under the influence of cannabis when he attended the home to
collect the children. Whilst he agrees that he may well have smelt of cannabis,
his evidence was that he did not consume it that day and that he did not believe
his speech to be slurred.

Conclusion about use: husband is addicted


I believe that the totality of the evidence leads to the inevitable
conclusion that the husband is addicted to cannabis, in the sense that, for the
husband, the consumption of cannabis permeates his life and is not something
that can be controlled. I agree with the submission made by Counsel for the wife
- the effect of the husband's evidence to the Court, and his statements to the
Family Consultant, was quite misleading about the nature and extent of his
consumption of cannabis. I accept that his evidence indicates that his
consumption fluctuates from time to time and that he is able to control it for
periods of, perhaps, up to two months. However, the consumption of cannabis has
been a feature of the husband's life for the last 20 years, by his own
admission. His own evidence was that his expenditure on cannabis was about
$2,000 a year, consisting of 20 $100 deals. Each deal led to 30 joints of
cannabis when mixed with tobacco, and each deal would last 10 days
approximately. This means, however, on the husband's own evidence, that he would
consume 600 joints each year. This sort of usage is clearly one that permeates
the husband's life and, in that respect, constitutes an addiction. It is hardly
the controlled use that was asserted on his behalf.

An expert Dr B gave evidence about the impact of marijuana use on parenting:

Dr B ... was asked the question whether there is reliable research that
addresses the issue about the effect on parenting, of the consumption of
cannabis. He explained that there was no specific literature on that issue, and
that most of the literature concerned addiction to alcohol. His opinion,
however, was that occasional use of cannabis was of little concern, but
dependent use is different. He opined that occasional use of cannabis is
consistent with being able to parent. However, he emphasised that there is a
need to assess the individual, rather than to make broad generalisations from
the research.

Conclusion about time between dad and the kids

His Honour ordered that the father be able to spend time for half of school holidays and during term from Thursday until Monday one week and overnight Friday in the other week. The husband was also ordered not to consume cannabis when spending time with the children or for 24 hours before.

Altobelli FM stated:

During the period of cohabitation I accept that the wife provided a safety
net for the children and, to that extent, sought to protect them from any
possible adverse consequences of their father's addiction. I accept that since
separation she has maintained her concern but sought to balance that concern
against her own acknowledgment that the children need to spend time with their
father. In the future, however, the children will become older and much more
perceptive to what is happening around them, including what they observe in
their father, and what they notice by way of smells. It is a fact that most
children at primary school and high school undertake routine instruction about
the effect of addictions of all sorts, including cannabis. Even if it is the
case that the father has succeeded in hiding his addiction from his children in
the past, it is inevitable that they will become aware of it at some time in the
future. When that happens, what sort of role model will he be for his own
children?
During his Counsel's closing submissions, I put to her what I
considered might be, on the husband's own case, a worst case scenario for the
children. That scenario is one where the husband becomes under the influence of
cannabis as a result of consuming the same, outside the house, after the
children had gone to bed. What would happen if an emergency arose that night
that required the husband to be fully alert and able to make a quick and correct
judgment call in a potentially life-threatening situation? Counsel quite
properly responded by articulating the reality of modern society, i.e., that
there are many, many families who confront drug and alcohol addiction problems
and yet still seem to function at an acceptable level. She suggested, however,
that the evidence here indicated that he does not smoke when the children are in
his care and that, in any event, he offers undertakings and would certainly
abide by any order such as that imposed by Henderson FM. By inference, the
response to my hypothetical scenario was that the risk was a minimal and
manageable one under the circumstances. However, the evidence before me
indicates that the husband has, on his own evidence, smoked up to 600 joints of
cannabis a year, so I would have to be reticent about accepting an undertaking
from him not to do so when the children are in his care and, moreover, I would
have to be sceptical about his capacity to comply with any order I make to that
effect.
I accept that the husband is a good parent when he is not under the
influence of cannabis. However, when he is under the influence of cannabis, he
is not as available for his children as he otherwise should be, and needs to be.
The context of this discussion is that the husband applies for an order that he
have the care of his children on an equal time basis, i.e., seven out of 14
nights. Implicit in his proposal is that he would not consume cannabis at all
during the time immediately before and during this period of care of the
children. But this period of abstinence is not something that I believe the
husband is capable of achieving and/or sustaining, having regard to his own
evidence. Perhaps, at some future time, he might be able to demonstrate to me,
or another Court, that he has conquered his addiction to cannabis and that might
invite, at that time, and subject to all the other relevant considerations, a
reconsideration of his request for equal time. On the evidence before me,
however, I could not possibly conclude that equal time was in the best interest
of these children because of the concerns I would have about his reduced
capacity to meet their needs whilst under the influence of cannabis, and the
resultant need to protect them from the risk of abuse and neglect.
I have
not lost sight of the fact that the wife herself proposes four nights a
fortnight, knowing full well (indeed, probably better than anybody else) about
the precise extent of the husband's addiction to cannabis. Her rationale is that
the children need their father and have a good relationship with him. Indeed,
they do. From my perspective, however, the less time the husband has with the
children, the greater the chance that he is, indeed, able to control his
addiction so that he does not consume immediately before or during the time that
he has them in his care. ...

I recognise that the husband, and possibly other sections of the community,
might find my decision harsh and uncompromising. I can understand that
perception. After all, the husband holds down a very responsible and respected
position as a [educational professional]. I recognise that there is no evidence
before me to indicate there has been any actual abuse or neglect of these
children, and I recognise that by depriving these children of more time with
their father, I might in fact be inhibiting them from spending time with their
father which might enable them to build on the good relationship that he already
has with them. Notwithstanding all of that, my decision is informed by both the
objects and principles of Part
VII
of the Family Law
Act
as contained in s.60B.
I note, for example, that the best interests of children are met by ensuring
that they have the benefit of both parents having a meaningful involvement in
their lives to the maximum extent consistent with their best interests. Another
object is clearly about protecting children from being subjected to or exposed
to abuse and neglect. I am charged with the responsibility to ensure that the
children receive adequate and proper parenting so they can achieve their full
potential, as well as ensuring that parents fulfil their duties and meet their
responsibilities concerning the care, welfare and development of their children.
A parent who suffers an unfortunate addiction is not available to achieve the
objects that I have emphasised above. The husband is a responsible, respectable
person who, unfortunately for his children, suffers from an addiction to
cannabis. It is within his power to deal with that addiction.

Property: was spending on cannabis "waste"?

His Honour stated:


As indicated above, the husband conceded that he spent $20,000 purchasing
cannabis during the period of their relationship. That is the only evidence
there is about the extent of this expenditure. The wife asserts that it is waste
and it should be added back to the property pool as notional property in the
control of the husband. According to the description of waste enunciated by
Baker J in Kowaliw (referred to above) the husband would have had to act
recklessly, negligently or wantonly with matrimonial assets, the overall effect
of which was to reduce or minimise the value of the same. On behalf of the wife,
it is submitted that the consumption of cannabis was an illegal activity and it
thus falls within the category of waste.

On behalf of the husband, it is submitted that the evidence before the Court
does not sustain such a finding, and that, in any event, the husband's
consumption was something that the wife acceded to. I am certainly not satisfied
that the evidence indicates that the wife either approved or acceded to his
consumption of cannabis. It is more likely the case that she felt helpless in
the face of what I have found to be an addiction on his part. However, I am not
sure that the mere fact that it was an illegal activity necessarily constitutes
the expenditure as waste.
I think the essence of the waste principle is, in fact, whether the activity could be characterised as a joint or individual one.
The consumption of cannabis was clearly an addiction that was attributable to
the husband alone, and not the wife. There is no conceivable benefit that could
be attributed to the wife arising out of this activity. There was no conceivable
improvement in life that could be enjoyed by the family as a whole. It was an
entirely selfish pursuit, designed to produce pleasure and possibly some form of
relief to the husband. If he had not spent this money, I think there is a strong
inference that it would have been enjoyed by the family in some other way. Under
these circumstances, I conclude that his expenditure on cannabis should be added
back as notional property. I note, however, that it comprises a tiny proportion
of the overall pool of assets.

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