Tlw v Lcb Fc Lhtt
| Jurisdiction | New Zealand |
| Judge | A P Walsh |
| Judgment Date | 13 December 2011 |
| Court | Family Court |
| Docket Number | FAM-2007-032-000325 |
| Date | 13 December 2011 |
FAM-2007-032-000325
IN THE FAMILY COURT AT LOWER HUTT
Decision relating to costs and drug testing — substantive proceeding related to applications under the Care of Children Act by the mother to relocate to Australia with the parties children (unsuccessful) and by the father for alternate weekly care — allegations of drug use and criminal associations against the father — father lied in Court and Family Court made numerous adverse findings against him — whether costs should be awarded under s142 Care of Children Act 2004 (costs) and r207 Family Courts Rules 2002 (costs at discretion of Court) — whether the father should be subject to random drug testing — principles of costs awards under the Care of Children Act 2004.
P Le Page for applicant
J Steele for respondent
P Reid lawyer for children
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE WWW2.JUSTICE.GOVT.NZ/FAMILY/LEGISLATION/RESTRICTIONS.
RESERVED JUDGMENT OF JUDGE A P Walsh
[Costs and Drug Testing]
On 30 June 2010 I delivered a reserved judgment dismissing Ms B's (the mother) application for relocation. A contact order was made in favour of Mr W (the father) subject to terms and conditions set out in paragraph [154] of the judgment. As issues of costs relating to this hearing and a hearing before her Honour Judge Ullrich QC had not been fully argued, I directed there be a telephone conference with counsel to consider how these issues would be determined.
Counsel could not agree upon a drug testing protocol as directed in my judgment. At a judicial conference on 8 October 2010 I made timetabling directions about the filing of further affidavit evidence relating to non-compliance of conditions attached to the order for contact and further directed memoranda were to be filed setting out proposals for drug testing and addressing the issue of costs.
At a teleconference with counsel on 1 December 2010, after hearing submissions, I advised I would deal with issues relating to drug testing and costs on the basis of memoranda and submissions filed by counsel. There were ongoing issues between the parties over contact arrangements. I ruled if either party wished to have the current orders varied then the appropriate applications would need to be filed and served in the usual way. I record counsel agreed I could deal with the issue of costs relating to the hearing before Judge Ullrich QC in April and May 2009.
The father initiated proceedings by filing an application for a parenting order seeking alternate weekly care of the children. The mother opposed that application and filed an application for an order enabling her and the children to relocate to Australia. The father opposed that application.
The applications were the subject of a substantive hearing which occurred in two stages. This procedure became necessary given the concerns of the mother about the father's involvement with drugs and criminal associates. At a judicial conference on 11 December 2008, Her Honour Judge Moss issued a minute directing how the hearing was to proceed. At paragraphs [5] to [7] she made the following observation:
Judge Moss indicated once the Court had made findings about those matters, Mrs Keith would then be asked to consider those findings in an updating report.
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[5] However, there is now another problem, which was not able to be solved at the time that Mrs Keith did her report. The mother has criticised the father's parenting, based on involvement with drugs and criminal associates. Ms Keith has referred to those complaints by the mother. Since Mrs Keith's report, the mother has filed a considerable number of affidavits from people who profess direct and individual knowledge of drug use and dealing by Mr W, and including some criminal association.
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[6] It is necessary for the Court to make findings about that evidence. Mrs Keith is not prepared to, nor is she is qualified to assess that evidence and it would be wrong for the Court to ask her to do that. Thus the fixture which has previously been authorised needs to be divided into two.
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[7] Although s 60 of the Care of Children Act does not apply to this situation so directly, the process which the Court has developed, to resolve issues under s 60 fit nicely with what is occurring here. Thus there is to be a fixture for 1 1/2 days allocated, as soon as is practicable, to consider the allegations made by the mother of the father's fitness to parent these girls in a substantial way, based on the mother's allegations of his criminal behaviour and drugs abuse.
The fact finding hearing took place before Her Honour Judge Ullrich QC on 30 April and 1 May 2009. On 8 May 2009, Judge Ullrich QC delivered a reserved judgment in which she recorded a number of adverse findings against the father. In my judgment delivered 30 June 2010 at paragraphs [11] to [22] I reviewed the findings of Judge Ullrich. She had noted the mother believed the father would never tell the truth about a matter if it incriminated him. The mother alleged the father was involved with drugs and criminal activity and was particularly concerned he was using the drug “P”. The father denied any involvement in the criminal world and use of drugs. He conceded in the past he had used cannabis occasionally, about three years previously and there were two occasions when he did try the drug “P” but he claimed that was about 3—3 1/2 years ago. About 5—7 years, before he separated from the mother, he admitted he had tried LSD and Ecstasy. He denied he was a big user of cannabis and denied selling cannabis.
At the first hearing the father indicated he was prepared to undergo a hair follicle drug test but did not disclose on the first day of the hearing that in fact he had already undergone such a test. Judge Ullrich questioned the father directly about undergoing such a test and the father lied in his response to her. On the second day of the hearing the father was recalled and he admitted at that stage he had undergone hair follicle testing a few weeks previously. That test indicated he had ingested methamphetamine in about November 2008. The father advised he was making further inquires as he did not understand how this could be the result when he had not taken the drug.
At paragraphs [75] to [79] Judge Ullrich made a number of specific findings which can be summarised as follows:
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1. The father had lied in answering questions from the Court on the first day of the hearing about hair follicle testing.
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2. The father's pattern of denial followed by admissions, when confronted with alternative evidence or consequences was exactly the pattern described by the mother and her partner in their evidence, ie. “deny, deny, deny until you are caught and then say you're sorry”.
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3. The father had lied about his involvement with drugs and drug dealing.
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4. The father had lied to suit his purposes.
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5. Where the evidence of the father conflicted with that of the mother or her partner, there was justification in believing the evidence of the mother and her partner in preference to that of the father.
Although the father claimed he had smoked “P” on one occasion, Judge Ullrich found he had smoked “P” on more than one occasion. While she observed he may not have taken “P” recently, it was likely he had avoided taking it as he was aware he might be required to complete a drug screen test. As the father continued to hold down a fulltime job and provide care for the children, Judge Ullrich considered he was not addicted to methamphetamine but had used it from time to time. There was insufficient evidence to find the father was dealing in drugs on a regular basis; Judge Ullrich observed it was more likely he had obtained drugs for himself or passed on drugs to associates from time to time. There was no evidence he was running an operation equivalent to a “tinnie house” at his property.
The mother had raised other concerns about the father's care of the children. After reviewing the evidence relating to these concerns, Judge Ullrich felt they reflected different approaches to parenting issues. She concluded the father's casual attitude to the concerns raised by the mother, his denials and his lies, had eroded the mother's trust in him as a safe carer for the children.
Judge Ullrich accepted there was some risk for the children associated with the father's involvement in drugs and his use of drugs, but overall she put that risk “at the low end”.
When the second stage of the hearing proceeded before me, the mother felt vindicated by the findings of Judge Ullrich but had difficulty accepting the degree of risk was “at the low end”. Although the father admitted at the first hearing he had undergone hair follicle testing, he did not disclose the ESR report dated 24 March 2009 about the hair follicle testing until he swore an affidavit on 12 February 2010. Details of that report are set out at paragraphs [39] to [41] of my judgment. This report disclosed three segments of the hair sample had been tested indicating the father had used “P” from mid-August 2008 until mid-February 2009.
At the second hearing the father said he was “astounded” at the test results claiming he had ascertained it was possible to obtain false positive results although he acknowledged there was some debate about that possibility.
At paragraphs [139] to [146] of my judgment I reviewed the evidence relevant to the issue of safety having regard to s 5(e) of the Care of Children Act (the Act). After reviewing the father's evidence I concluded he had not enhanced his credibility at all. I considered he had effectively tried to “bluff...
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