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Drug overdose alleged but no change of orders

Drug overdose alleged but no change of orders

Driscoll & Driscoll


  1. By application filed 2 July 2015, the applicant mother Ms Driscoll (“the mother”) sought orders, among others, requiring the child X born (omitted) 1990 (“the child”) to live with the mother. Five months earlier, to the day, the mother and respondent father Mr Driscoll (“the father”) agreed to final consent parenting orders the effect of which was to confer equal shared parental responsibility upon both the mother and father and for the child to live with the father.
  2. The mother sought to unravel the regime effected by the consent orders made on 2 February 2015 by alleging that it was no longer appropriate for the child to live with the father on account of an incident that occurred on 13 January 2015 in which the father was taken by ambulance to hospital allegedly on account of a drug overdose.
  3. Three of the four days over which this trial was heard were devoted to the mother seeking to prove that the father’s hospitalisation was on account of a drug overdose rather than for some innocuous medical reason.
  4. During final addresses, counsel for the mother agreed that there would be no basis for interfering with the consent orders made on 2 February 2015 unless I was positively satisfied that the father had been hospitalised by reason of a drug overdose and that even if I was so satisfied, that factor in and of itself did not necessarily mean that an alteration of the consent orders had to be made. Counsel for the mother also recognised that the principles espoused in the leading case of
    Rice v Asplund[1] required the mother to demonstrate that circumstances had changed since the making of the consent orders to such an extent that intervention by the Court was warranted.


  1. For the reasons that follow I was not satisfied either that the father was hospitalised by reason of a drug overdose on 13 January 2015 nor was I satisfied that it was appropriate to unravel the orders effected by consent on 2 February 2015.
  2. For the reasons that are developed below, I dismiss this application with the consequence that the orders made by consent on 2 February 2015 remain in full force and effect.

Short factual narration

  1. While slightly out of chronological sequence, the narration in this case must begin with the family report that painted an altogether satisfactory picture of the child while living with the father.[2] The family consultant Ms B (“the family consultant”) recommended that the child live with the father and that the child continue to do so under a long-term arrangement. The family consultant recommended that the child spend time with the mother in the manner provided for pursuant to the consent orders made 2 February 2015.
  2. The family consultant gave evidence by telephone. Complications associated with her appearance during the trial necessitated that. As a result, the usual shortcomings associated with evidence given by telephone accompanied the family consultant’s evidence. Despite those shortcomings, the family consultant struck me as a forthright and considered witness whose recommendations were carefully undertaken after the family consultant observed the child with both the mother and the father.
  3. During her cross-examination, the family consultant was requested to consider whether her recommendations would have changed if the fact was proved on the balance of probabilities that the incident on 13 January 2015 was the consequence of a self-induced drug overdose. The family consultant did qualify her recommendations had it been shown that the event on 13 January 2015 was positively found as a proven fact to have been caused by a self-induced drug overdose. For the reasons that are developed below, I was not satisfied on the balance of probabilities that the incident on 13 January 2015 was the result of a self-induced drug overdose.
  4. Uncharacteristically in cases of this type, the mother was complimentary of the father’s activities in raising the child. Counsel for the father extracted, with very little persuasion, admissions from the applicant to the effect that not only was the child happy and flourishing in her life, but that the family consultant made a similar observation.
  5. Let me endeavour to put the incident on 13 January 2015 in context.
  6. According to the father’s treating medical practitioner, the father had for a period of time suffered chronic pain to the upper left limb and, as at the date of the trial of this proceeding, was in the process of consulting a musculoskeletal physician. The father had been and remains a patient of his treating medical practitioner for “at least a few years now”[3] (which I infer to include a period prior to the episode on 13 January 2015) and that the father had not deviated from taking prescription medicines, as prescribed by the father’s treating medical practitioner. The father’s treating medical practitioner was questioned about the father’s past history of intravenous drug use. The evidence was extremely scant. Such evidence as there was about the father’s historical intravenous drug use pre-dated the dealings between the father and his medical practitioner.
  7. Given the frequency of the consultations between the father and his medical practitioner, had evidence existed of a continuing drug addiction in or around January 2015, I would have expected – but did not hear or see – evidence from the father’s medical practitioner about the subject.
  8. The spectre of a drug overdose was first introduced through the evidence of the ambulance officer who attended the scene on 13 January 2015. I say “spectre” because the ambulance officer, a thoroughly credible witness, drew a conclusion about the father’s presentation on 13 January 2015 from which conclusion the ambulance officer was not shaken.
  9. Unsurprisingly, the ambulance officer’s evidence was predicated on his reading of notes rather than a direct recollection of events. While he said in evidence that he recalled this case, he preferred to rely on his notes before he gave his evidence. There was nothing exceptional in his choosing to adopt that course.
  10. The ambulance officer said that in the company of other members of a crew he responded to a call in relation to a case of a cardiac arrest. He said one crew was ahead of him by five minutes, the Advanced Life Support crew (“ALSC”). He said he was given a brief handover. No member of the ALSC was called to give evidence. At all events, the ambulance officer said he checked the father’s airway, breathing and circulation and did not detect a palpable pulse. He said he had been told by the ALSC that arrived before him that the patient had been dragged from the car by his partner. That assertion was not proved. At all events the ambulance officer said the ALSC informed him that CPR had been ineffective so assisted ventilation with a bag valve mask was undertaken. He said that about two minutes after his arrival the monitor was checked for a shockable rhythm and upon analysing the rhythm a pulse was detected after which the patient’s airway was supported with ventilations and an amount of saline was administered.
  11. The ambulance officer said that in the ALSC’s case sheet, ALSC had recorded that track marks were present. Again, no member of the ALSC was called to give evidence about the circumstances of the creation of that note so the ambulance officer was in a position to do no more than give a commentary on someone else’s entry on the case sheet and the case sheet was not adduced in evidence. The ambulance officer said the patient was conscious when he was loaded into the ambulance.
  12. The ambulance officer said that as he was wheeling the respondent around, he asked whether the respondent had taken any drugs or alcohol. The ambulance officer said that he noted in his case sheet that the respondent did say that he (the respondent) had taken heroin.
  13. The respondent denied telling that to the ambulance officer.
  14. The ambulance officer conceded that he could not recall how many ambulance officers were involved in the task of wheeling the trolley.
  15. In cross-examination, the ambulance officer said that he did not observe track marks on the father. He also said he did not find any drug-taking paraphernalia in the car or anywhere nearby to indicate that the father had just taken a drug.
  16. The ambulance officer was cross-examined about an entry on an electronic document entitled “electronic patient care report”.[4] The ambulance officer confirmed having entered on that report the words “suspected overdose accidental”[5] and that the patient “confirmed heroin”.[6] The ambulance officer conceded that he had not been given that information but rather that those words had been entered on that document based on his assessment of the patient. He said his assessment was underpinned by pinpoint pupils, by snoring respirations and unconsciousness. He readily conceded he had not done anything to confirm that conclusion.
  17. The next witness chronologically that addressed the subject of the alleged overdose was the doctor at the hospital to which the father was taken on 13 January 2015. The emergency doctor gave evidence that she took a social history of the father upon his first presentation at the hospital and that the doctor recorded that the patient (the father) told her he had not used heroin for five years and that he denied any other drug use. The doctor conducted some blood tests which returned the presence of paracetamol and ethanol. The doctor said that she did not test for other illicit substances. In answer to a question of whether there was evidence before her on the day that a heroin overdose was evident from the blood test results, the doctor said there was nothing she could “prove on the blood test”.[7]
  18. The emergency doctor said she did not record evidence of a syringe nor information from ambulance officers indicating that a syringe had been located.
  19. In the case of both the ambulance officer and the emergency room doctor, I recognise that each routinely deals in high volume circumstances where on any given day both the ambulance officer and the emergency room doctor are exposed to very many patients with an array of medical complications. Under no circumstances could they be expected to have a precise recollection, independent of notes taken on the day, of the medical situations to which they attend. That said, entries in notes are always subject to the directness of the information that is recorded in them. In other words, information given by others which are recorded in a staccato or shorthand form in notes does not increase the probability of the accuracy of the information in those notes. In many instances, notes can be an aide memoir as well as a record of a prompt that the witness put in writing. An illustration of that was the ambulance officer’s entry “suspected overdose accidental”. To my mind, that note records little more than a guess by the ambulance officer about the reason why the patient was found unconscious on 13 July 2015.
  20. Similarly, the emergency doctor’s observations of the father’s physical presentation told only part of the story whereas blood tests told another part of the same story. Blood tests did not reveal the presence of a substance which could be chemically linked to heroin. As for the physical observations of the state of the father’s pupils, that information was at best equivocal, to my way of thinking.
  21. It is to be recalled that the ambulance officer did not give any information, whether direct or of a hearsay nature, of the presence of a syringe at the scene to which he attended. Logically, one might have expected such evidence to have been given.
  22. In addition, the direct evidence of the father’s treating doctor about the father’s medical condition in the lead up to the incident revealed the absence of any history referable to drug-taking, particularly heroin.
  23. In this case, I was required to make a finding on the balance of probabilities about the incident on 13 January 2015.
  24. In my judgment, on the balance of probabilities the incident to which the ambulance officer was called that resulted in the father’s attendance at the hospital was not caused by a drug overdose.
  25. But even if it had been, that is but one factor that I am required to consider for the purposes of s.60CC of the Family Law Act 1975 (Cth). Expressed slightly differently, even if I had made a positive finding that the incident on 13 January 2015 had been caused by a drug overdose, in and of itself, that did not necessarily lead to the conclusion that I was required to unravel the consent orders made on 2 February 2015 pursuant to which the child has lived with the father and continues to do so, perfectly happily and to the child’s positive advancement and development.
  26. I am not satisfied that any warrant was shown for altering the consent orders made on 2 February 2015.
  27. The mother’s application was premised on the existence of circumstances pursuant to which the mother could legitimately invoke the rule in Rice v Asplund. Ordinarily, pursuant to that principle the moving party must show that circumstances have changed to such an extent that the orders previously made warrant alteration.
  28. I am not satisfied on the facts of this case that circumstances have changed to such an extent that the orders made by consent on 2 February 2015 should be untangled. Prior to the making of those orders both the mother and father had a lamentable history of drug-taking. On the father’s evidence, supported by his medical practitioner, his drug-taking days had ended some considerable time prior to the episode on 13 January 2015. The mother admitted to a past history of drug taking.
  29. To my mind, nothing new, altered or changed was demonstrated by the event on 13 January 2015 warranting alteration of the orders made by consent on 2 February 2015. In many respects, the position advanced by the mother was remarkably inconsistent and unexplained. If she knew at about 13 January 2015 that the father of her child had been hospitalised on account of a drug overdose, it seemed to me extraordinary that about a fortnight later she would have consented to orders pursuant to which the child lived with the father. The fact that she consented to the orders of 2 February 2015 tended to support the probability that the episode on 13 January 2015 was not in fact drug-related as she asserted. In that eventuality, the event on 13 January 2015 was more probable than not to have been accurately explained by the father in the way that he did to the effect that the episode was stress-related occasioned by a panic attack, at all events wholly unrelated to drug-taking. That construction of the events would make it more probable than not that the mother freely gave her consent on 2 February 2015 to the orders that were made as she did not believe (it being the fact) that the episode on 13 January 2015 was drug-related.
  30. No change of circumstances was demonstrated. No basis for the making of this application to set aside the orders made by consent on 2 February 2015 was established.
  31. I dismiss the mother’s application.
  32. The orders made by consent on 2 February 2015 stand.


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