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Drug Testing in Parenting Matters

In recent years there has been a significant rise in the number of parenting cases where there are allegations that parents are exposing children to harm by using illicit substances. In parenting matters involving drug abuse, orders will often be made that the party who is allegedly using drugs must submit to drug testing. Failing to comply with drug testing ordered by the court or returning a positive drug test result will generally result in reduced contact with the children on an interim basis. It is also likely to lead to a decreased chance of final orders that include unsupervised contact with the children.

What happens when a parent is using drugs?

When there is evidence before the court that a parent is abusing drugs, the court will take the matter very seriously. If a parent is using drugs in front of the children, this will almost certainly lead to the court concluding that the parent lacks parental capacity and is placing the children at risk.

How does the court know about drug use?

When a person files an Application or a Response in a parenting matter, they must file a ‘Notice of Risk’ or ‘Notice of Child Abuse, Family Violence or Risk of Family Violence’. This document must include an outline of any risk to the children that the party is aware of, including alcohol abuse and the use of illicit substances by parents or other persons the children have contact with.

How does the court respond?

When a party makes allegations that another party is exposing the children to harm, the court will have regard to the primary consideration in any parenting matter, which is ‘the need to protect the child from physical or psychological harm from being subject to, or exposed to abuse, neglect or family violence’.

The court will consider putting into place safety measures to ensure that a child is not exposed to such a risk. Where there are allegations of drug abuse, the court will often require the parent to comply with orders such as:

  1. That a parent must not be under the influence of illicit substances;
  2. That a parent have regular drug testing;
  3. That a parent have random drug testing; or
  4. That a parent have a hair follicle test.

These orders may be made on an interim basis even where the allegations of drug abuse are disputed. In cases where the court believes that a risk is substantial, it may order that a parent have no contact at all with the children, or that they only have supervised contact. An immediate family member such as a grandparent may supervise contact or it may be supervised at a Contact Centre.

There are several ways the courts can test for drug use by a party to parenting proceedings.

Hair follicle test

Where a parent has acknowledged that they have previously consumed drugs, the court may order that they undergo a hair follicle test. When a hair follicle test is done, a sample of hair is taken from a person’s head. A hair follicle test can determine a person’s patterns of drug use over a period of time of up to three months. A hair follicle test can be done to detect one specific drug or several drugs. There is a significant fee associated with a hair follicle test and the fee may be payable by the party being tested or the cost may be ordered to be shared between the parties, depending on their financial situation.

Urine analysis

Alternatively, the court may order that a party have supervised urine analysis for illicit substance use. Urine analysis tests can be ordered to be done regularly, or alternatively may be ordered at random or in response to a suspicion that drugs have been used.

While urine analysis is less expensive than hair follicle testing, it has limitations. Different drugs stay in a person’s system for different periods of time, which makes urine analysis impractical for some situations.

Alcohol test

If a party is drinking excessively, the court may order them to have a blood test, to review their liver damage and function. A high level of liver damage generally indicates a high level of alcohol abuse over a long period.

The court may also order EtG testing. EtG testing is generally done by a urine sample and is used to detect alcohol consumption within the five days prior to the test.

Parenting orders can specify that drug testing or alcohol testing occur at particular times (such as prior to contact with the children) or that a drug test be performed at the request of a party (when they form a suspicion that drugs have been taken). The testing may be requested by the Independent Children’s Lawyer (ICL), if one is involved in the proceedings.

Positive test results

A positive drug test result may result in the court ordering reduced time with the children or ordering that any time spent with the child is supervised. These orders may be made on an interim basis, or until the party produces a negative sample. 

A limit if often placed on the number of drug test requests that can be made to ensure that parties are not abusing the process. A request that a party undergo drug testing must generally be made in writing and the test must be taken within a certain time. If the party fails to comply with the test within the designated time, this failure will be regarded as a positive test result.

The court can also order that parties do all things necessary to comply with testing, such as keeping their hair at a sufficient length to allow them to complete hair follicle testing.

If you require legal advice or representation in a family law matter or in any other legal matter please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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