In 2020, the Australian Institute of Health and Welfare reported the following statistics in relation to drug use in Australia:
- 43% (9 million) of Australians aged 14 and over had illicitly used a drug in their life and 16% (3.4 million) had used one in the last 12 months;
- People with mental health conditions are more likely to use illicit substances;
- 1 in 10 people aged 14 and over had been a victim of an illicit drug related incident in the previous 12 months in 2019;
- 1 in 25 Australians aged 14 and over had misused pharmaceutical medications in the last 12 months in 2019;
- 28% of drug treatment episodes in 2018/19 were amphetamines making it the second most commonly treated drug in Australia;
- the most common substance abuse drug is cannabis followed by amphetamines, the misuse of prescription drugs, cocaine and ecstasy.
Along with the alarming increase of use of illicit and prescription substances during the Covid-19 pandemic, drug use allegations have also increased in parenting matters before the Family and Federal Circuit Court of Australia.
Why is drug use by a parent relevant in a family law matter?
In cases where parents are consuming or are under the influence of illicit substances when they spend time with their children, they are exposing their children to potential harm. Such risks of harm can include dangerously inadequate supervision of a child, domestic violence stemming from the drug using parent, passive inhalation of illicit substances and impaired decision making.
The Family Law Act states that in determining the orders that are in a child’s best interests the primary considerations are the importance of the child having a meaningful relationship with both parents provided there is no unacceptable risk of harm to the child in maintaining that relationship.
In parenting matters, allegations of drug abuse are dealt with by way of a risk assessment of the Court. The Court must assess what the impact of that abuse has upon a parent’s capacity to provide adequate care for the child and to make decisions that are in the child’s best interests.
The difficulty is in assessing the extent of the risk of harm to a child of that drug abuse in determining what parenting orders should be made so as to facilitate a child having a meaningful relationship with a parent who is alleged to be abusing drugs, whilst avoiding the child being exposed to any unacceptable risk of harm in that parent’s care.
How do you prove drug use is a problem for a parent?
Once a drug use allegation has been raised, there must be evidence put forward to support it. The Family Law Courts will not accept a suspicion of “I just know” in circumstances where for example you have been separated for some years but you know that parent took an illicit substance some years ago when you were in a relationship. Two types of evidence are necessary in these circumstances:
- Evidence of drug use by a parent; and
- Evidence of behaviour by that parent which raises a concern that a child is at an unacceptable risk of harm.
There must be a connection between the drug use by a parent and the behaviour raising an unacceptable risk of harm of a child in that parent’s care.
How does the court respond to drug use allegations?
When a party makes allegations that a child is being exposed to harm of any nature, the Court will have regard to the primary consideration being “the need to protect the child from physical or psychological harm or from being subject to, or exposed to abuse, neglect or family violence.”
The Court will consider imposing safety measures to ensure that a child is not exposed to such a risk.
When allegations of drug abuse are made, the Court will frequently make orders as follows, even if the allegations are disputed:
- That a parent ensure they are not under the influence of illicit substances when they are spending time with the children;
- That a parent undertake regular/random supervised drug testing;
- that a parent undertake a hair follicle test;
- that a parent keep their hair at a sufficient length to complete the hair follicle testing;
- That a parent attend a rehabilitation program.
In cases where the Court believes that a risk is significant in nature, they may order that a parent have no contact at all with the children or that they have supervised time only with the children. Contact may be supervised by an immediate family member or at a Contact Centre, for a period of two hours per fortnight or such other arrangement as can be facilitated by the contact entre or supervisor and agreed between the parties.
Types of Drug Tests
If you are proposing that the Family Court make orders for drug testing, it is important that you understand the detection windows for each type of testing and identify how quickly each specific drug is expelled from the body.
Drug testing can take many forms including:
- Urine testing;
- Hair follicle testing;
- Blood testing;
- Oral swab/saliva testing;
- Breath testing.
In our experience, the Courts generally will make orders for urine or hair follicle testing. Both types of testing entail providing a sample, either urine or a strand of hair, to detect prescribed levels which indicate the use of varying types of drugs.
A hair follicle test can determine a persons drug use over a period of time, usually three months. A urine test can determine usage over a period of 2 days (for amphetamines) or 4 – 6 weeks (for cannibus). Accordingly, Urine testing has limitations making it impracticable in most cases where there is an allegation of amphetamine use.
Urine testing is generally sufficient to detect marijuana use (which takes anywhere from 4 to 6 weeks to leave ones system), however hair follicle testing is usually preferred for amphetamine use. This is because amphetamines are generally expelled from the system within a 48 hour time frame and are not usually detectable using a urine test after the 48 hour window has lapsed. However, a hair follicle sample will detect use of amphetamines over a period of three to four months.
It is common for the Family Law Courts to make orders for a random testing regime at the request of the other parent or the Independent Children’s Lawyer. A random drug testing regime minimises the period between notice that a test is required and collection of the sample. This is particularly important in order to detect the use of amphetamines. The element of surprise denies the alleged drug user the ability to abstain from use of drugs in order to prepare for a test.
Who do I organise my drug test through?
A urine or a hair follicle test can be done through AWTDS.
You can also get a referral from your local doctor prior to attending a Pathologist for the testing, which may reduce the cost.
A urine test costs from $10 to $100. A Hair follicle test costs approximately $380.
What if a parent has a positive test result?
A positive drug test result may cause the Court to reduce the parent’s time with a child or order that the time spent with the child be supervised. These orders may be made on an interim basis and may continue until a negative test is produced, or until a final Hearing.
All random drug test requests should be made in writing to the other party and the test must be done within a certain time frame. If the parent requested to do the test fails to comply and undertake the test within the designated timeframe, this failure will often be regarded by the Court as the same as a positive test result.
Where there are allegations of risk associated with drug abuse, the Court will always proceed cautiously and set up safeguards on an interim and final basis so as to protect the child from any risk of harm until there is an opportunity to test the truth of the allegations made.
The Court will always give greater weight to the child’s right to be protected from harm over the child’s right to have a meaningful relationship with both parents, however drug use is not necessarily determinative of a supervised time order and it will depend on the individual circumstances of each case. The aim of the Court is to strike a balance so that the child can still have a meaningful relationship with both parents and mitigate any risks of harm to the child at the same time.
If you are in need of assistance with respect to a family law issue involving allegations of substance abuse, please get in contact with us and book a reduced rate initial consultation with one of our experienced family lawyers to have a confidential discussion about your individual circumstances.