A man’s access to his children will be subject to him testing negative for drugs and will be terminated if he returns a positive result, the High Court has ruled.
Ms Justice Nuala Jackson said the man did not dispute that he had been engaging in illegal drug taking in the context of extramarital sexual activity with men. He said the drug taking was in the realm of experimentation only, while his wife asserted this was a much more frequent practice.
The judge said she could not determine this issue with any precision, but noted that since late last year the man has readily volunteered to undertake regular drug testing and these have returned negative results.
The family’s case came before Ms Justice Jackson by way of motions in the woman’s proceedings seeking a decree of judicial separation from her husband of many years. The decree issue has yet to be determined.
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The woman’s initial motions came in while the husband was not represented in court. She sought and was granted a temporary safety order, which she asked Ms Justice Jackson to extend or to replace with a barring order. She also wanted primary care of their children.
A safety order can prohibit the use of threatening violence, watching the person’s home and/or following and communicating with them.
The man brought a cross-motion seeking a protection order and a safety order against her and asked the court to regulate access with the children.
In her judgment, published on Friday, Ms Justice Jackson said that despite the relationship challenges, the spouses’ respect for each other as parents has continued and both are “undoubtedly devoted” to their children.
Some time before the application, she said, the woman found messages on her husband’s phone and discovered he was involved in an extramarital relationship with a man. She instructed a private investigator to ascertain further information about her husband’s activities.
The judge said she was provided with “descriptive details” of messages that indicated the man was taking illegal drugs, which appeared to overlap with sexual activities in what is known as “chemsex”.
Ms Justice Jackson said the man seemed to have been living “what could only be described as a double life” and the woman was “understandably” very upset by the discoveries. It was not for the judge to make any adverse findings about the extramarital sexual relations.
However, she said illegal drug taking is a “most serious matter”.
The judge found, on the balance of probabilities, the man has fulfilled his undertaking to the court and will refrain from illegal or irregular drug use. While the woman argued he had an addiction problem, the judge felt this was not supported by the evidence.
The judge said the evidence did not back the woman’s assertion of “persistent and insidious assaults” by her former partner. “There were undoubtedly rows [ ...] but these were clearly bilateral in nature,” she found.
Some of the woman’s actions contradicted her statement that she was “petrified” of the man, while the mother admitted she was not proud of having verbally abused the man on occasions, the judge said.
Ms Justice Jackson found the woman’s denials of a physical assault on the man were “opaque”, so the judge formed the view that a physical altercation probably occurred on that occasion.
The man also alleged she was controlling and seeking certain court orders to gain a litigation advantage in the proceedings.
To grant a safety order under section 6 of the Domestic Violence Act of 2018, there must be reasonable grounds for believing the safety or welfare of the applicant requires it, the judge said.
She found the man’s actions have adversely affected the woman’s welfare, while his attitude to his behaviour is “naive, dismissive and somewhat arrogant”. It is not reasonable to conclude the woman’s safety was put at risk by him, the judge said.
A safety order, pending further order, is appropriate to protect the woman’s welfare, the judge found. She noted the man has given an undertaking to the court to live away from the family home save for exercising his access to the children.
The judge held that all access will be subject to negative testing for drugs.
It is “imperative” for the family’s wellbeing that the separation proceedings progress without delay, the judge said as she adjourned the case.
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