Menu
Unfortunately, drug abuse is a common problem facing society today. Specifically, the use of the drug ‘ice’ has been referred to be in a widespread epidemic. It is therefore quite common for allegations about drug abuse to be raised by a parent in Family Court proceedings. In ensuring that children are not exposed to the risk of harm the Family Court will often make orders that one or both parents (or any other people involved in the proceedings) undertake random drug testing. It is at the discretion of the Family Court to make that order. Often, these tests are ordered even when the alleged drug user is disputing the allegations. If a parent alleges that the other parent is abusing illicit substances in a way that puts a child at risk of harm, the Family Court will take these allegations very seriously.
Court orders
Family Court decisions are bound by the Family Law Act, which states that the children’s best interests are paramount. When considering what’s in the best interests of the children, the Court refers to s 60CC of the Family Law Act 1975. The two primary considerations are the benefit to the children of having a meaningful relationship with both parents, and the need to protect the children from harm caused by neglect, abuse or family violence.
The Court has the power to order that either one or both parents undergo drug testing to determine whether they have the capacity to care for the child or pose a risk of harm, even when these allegations are denied. If you are concerned that your former partner is addicted to drugs and your children are not safe, you should request drug testing right away. If your former partner won’t agree, you can seek orders from the Family Court that they undergo drug testing. The Family Court says that a parent’s potential drug use or dependency is a highly relevant matter for consideration in determining a child’s best interest and that whilst drug use does not lessen a parent’s love for a child it does lessen a parent’s ability to care for a child.
If a parent has been ordered to undertake drug testing, they are required to comply with this order. If they fail to comply with such an order, the Court may infer that they would have tested positive for the substance and assume that the other party’s allegations about the drug use are true. Drug testing is an easy and effective way to gather reliable evidence about whether a parent is using drugs and whether the children may be at risk of harm.
Drugs testing
Drug testing for Family Court purposes can take several forms. One type of drug testing is urine analysis testing at a pathology laboratory. The collection of a urine sample for this purpose must adhere to the chain of custody provisions in accordance with the Australian Standards. These
samples need to be supervised by qualified personnel to ensure there is no possibility of any cheating. Urine analysis testing is usually requested randomly by the other party’s solicitor, or in the case of Western Australia, it is usually the Independent Children’s Lawyer.
Another form of drug testing is hair analysis. This involves a party having a sample of hair taken from them and tested for illicit substances. Although these tests can be more significantly more expensive, the benefit is that they can detect the use of illicit substances dating back several months. When such orders are made there is also orders often made about the length of hair that can be cut and if a parent can dye or bleach their hair. These tests are commonly requested when it has been claimed that a parent has a very serious and ongoing drug problem.
The Court has the discretion to determine how long drug testing orders stay in place and it usually depends on the severity of the alleged drug problem. Drug testing orders can stay in place for an indefinite or set period of time. If the other parent’s drug problem is very serious, the Court may want drug testing to continue for up to a year or more. If the alleged drug use is not as serious, a party may only be required to undertake drug testing until six clear tests are received.
Positive drug tests
If a parent cannot provide the Court with consecutive clean drug screens, it may be determined that they have a serious addiction that could put the child in harm’s way. If orders are not already in place, the Court may consider removing the child from that drug using parent’s care and placing them in the care of the other parent to ensure that they are not exposed to drug use or put in harm’s way.
Sometimes in such cases, the parent that is using drugs may have supervised contact with their children at a Child Contact Centre if they are also able to provide clean drug screens. If the other parent cannot show the Court that they can abstain from drug use whether, through clean drug screens and/or evidence of rehabilitation, it is unlikely that they will be allowed any unsupervised time with the children.
Alcohol
If a parent uses alcohol to excess while they have the care of the children, the court may make orders urine analysis similar to those that they make for illicit drug use. A court may also make orders for a parent who is to have the care of the children not to consume alcohol in the 24 hours prior to them having the care of the children and whilst the children are in their care. The parent may be subject to random breath tests.
If it doesn’t go well and a parent fails, or does not attend for a urine analysis, the Court might order supervised time and order the parent to undertake rehabilitation. The court might move to an unsupervised time in future if the parent proves responsive to treatment for their addiction.
Tobacco use
Currently, all Australian states and territories have banned smoking in vehicles where children under 16 years of age are passengers. Children have an increased risk for respiratory infections and ear problems from cigarette smoke. Asthma symptoms in children can also be triggered by exposure to cigarette smoke.
