In parenting matters before the Federal Circuit and Family Court of Australia and the Family Court of Western Australia, the paramount consideration must always be the best interests of the child. A parent’s drug habit is a relevant issue in a family law matter insofar as the habit interferes with the ability of the parent to provide a safe and nurturing environment for the child. When a parent is under the influence of drugs, they have impaired decision-making ability, are more prone to violent behaviour, may expose their children to passive inhalation of illicit substances, and are more likely to leave their children unsupervised and at risk of harm. Consequently, when a parent takes illicit drugs or abuses prescription drugs, it can become a significant issue in custody cases. This page deals with drug testing in parenting matters.
Best interest of the child
From 6 May 2024, there is no longer a legal presumption in the Family Law Act 1975 that it is in the child’s best interests for their parents to have “equal and shared” parental responsibility. Instead, the court must determine what is in the child’s best interests using six general considerations:
- The need to keep the child and their caretaker safe from abuse, family violence, neglect, or other harm;
- The views of the child;
- The emotional, psychological, developmental and cultural needs of the child;
- The capacity of each potential caregiver to provide for the child’s needs;
- The benefit of the child having a relationship with their parents and other significant people in their life, when it is safe for them to do so; and
- Any other relevant factors in the child’s particular circumstances.
There are further considerations that apply in cases specific to Aboriginal and Torres Strait Islander children, such as their right to enjoy their culture and connect with members of their family, community, and country.
Parental drug use
When a parenting case starts, the parties must notify the court of any allegations of family violence or risk to the children. In cases where there are allegations of substance abuse the court may appoint an Independent Children’s Lawyer to represent the child’s interests. Alternatively, the parents themselves can request the appointment of an ICL.
In Australia, there has been a growing number of parenting cases involving allegations of parents exposing children to harm due to substance use. The Family Court in Hogan & Hogan [2008] held that a parent’s drug use is a highly relevant issue in a family law matter. The court recognised that drug use does not decrease a parent’s love for their child but found that drug dependency does impact the parent’s ability to care for a child. Notably, when a parent is found to have used drugs in front of their children, the court is more likely to conclude that the parent lacks the necessary parental capacity and is placing the children at risk.
Ordering drug testing in parenting matters
When someone makes an allegation of parental substance misuse in a family law matter, the court can order one or both parents to undergo alcohol and drug testing. Drug testing in parenting matters involves the analysis of bodily fluids and hair samples to detect the presence of illegal substances. The method of testing largely depends on the type of substance involved. For instance, when a parent is allegedly abusing alcohol, the court may order a blood test (which is indicative of recent abuse) or a liver function test (which evidences historic alcohol abuse). The court has most commonly relied on urinalysis testing as it is less expensive, less invasive, and faster than other tests. However, in recent years the court has shifted to hair follicle testing as this provides evidence of drug use over time. This type of testing can detect drug use up to 90 days before the date of the test. When the court orders hair follicle testing, it will restrain the parent from cutting or colouring their hair until the tests are carried out. The court typically orders drug testing without warning so that the parent has no opportunity to manipulate the results.
The court can order that drug and alcohol testing should continue as long as necessary to determine the best interests of the child, at the cost of the parent being tested. It is important that a parent does not ignore an order to undergo testing, as a delay may result in a “fail” even with a clean test.
Positive results
If a drug test returns a positive result, it can impact the court’s orders, for instance:
- the parent might be reduced to supervised time with their children until they can pass a drug test;
- there may be additional conditions added to the parenting order relating to the use of illicit substances around the children;
- the parent may be required to undergo continued testing to see whether there is a reduction in drug use; and
- there may be an order to attend counselling for drug addiction.
The court takes allegations of drug abuse very seriously when assessing the risk of harm in parental disputes. If you have any questions about the use of drug testing in a family law matter, please get in touch with the Taylor Rose family law team on 1800 491 469.
