My Ex Is Taking Drugs: Drug Testing in Family Law

In parenting disputes, one of the most common allegations is that a parent is using an illicit drug. A court has the power to make an order that either or both parents submit to drug testing, and has the discretion to decide the most appropriate type of testing. Testing is usually by urinalysis or hair follicle testing.

The use of an illicit drug is not itself a factor which can render a parent unsuitable to have custody of a child; the determinative factor is whether the drug use presents a risk to a child. The court’s responsibility is to assess what is in the best interests of the child, and this includes reducing any risk to a child.

Best interests of the child

Section 65AA of the Family Law Act 1975 provides that “in deciding whether to make a parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”.

The court’s primary considerations are:

• the benefit to the child of having a meaningful relationship with both of the child’s parents; and
• the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The Act states the court must consider “the need to protect the rights of children and to promote their welfare” in any proceedings. Section 60B(1) states that the aim of the Act with respect to children is “to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children”.

If a court believes a parent’s drug use places a child at risk while the child in that parent’s care, the court can make an order that limits the time spent with that parent or prescribes the type of contact that can be had.

The court will order drug testing be done until it is satisfied there is no risk to the child. It is not required to set an end date for drug testing.

Independent Children’s Lawyer

The Act allows the court to appoint an Independent Children’s Lawyer to represent the best interests of a child in parenting proceedings. The appointment can be made by the court, or on application by parties to the proceedings, or by another person. The lawyer can make a recommendation to the court about action in the child’s best interests. This includes requests for random drug testing of parents for up to 12 months. The lawyer can request urinalysis up to once a month and hair follicle testing up to once every 2 months

Reporting drug use

If a parent suspects drug use by the other parent, they must submit a Notice of Child Abuse, Family Violence or Risk to the Federal Circuit and Family Court of Australia (FCFCA). If the notice is filed with a parenting order, an affidavit must also be filed which states the evidence on which the allegation is based.

Under the Act, the courts must report certain information to child welfare authorities, and this includes allegations of child abuse or a or a risk of child abuse. If the notice contains an allegation of drug use which could present a risk to a child, the court must provide a copy of the notice to the relevant child welfare authority.

Drug testing

Hair follicle testing and urinalysis test for evidence of the use of:

• amphetamine, methamphetamine and MDMA;
• marijuana;
• cocaine;
• opiates

Drug testing is usually scheduled for between court dates, with the results provided to all parties before the next court date. Each party usually pays for their own drug testing. Non-compliance with a drug testing order creates a presumption of a positive test result. Non-compliance can include not submitting for testing within a designated time, or not keeping hair at a sufficient length to allow hair follicle testing to be carried out.

Urinalysis

This can usually be carried out at a local pathology centre, at a cost. It involves providing a sample of urine in a controlled setting. The urine is tested and a pathology report is provided to the party. The party or their solicitor discloses or exchanges the results with the other party. The testing can show drug use from up to several days earlier.

Hair follicle testing

This testing can show drug use over a longer period, and is usually carried out to show periods of use of 3, 6, 9 or 12 months. Like urinalysis, a sample of hair is taken and tested, with a report then produced. A hair follicle test can cost between $300 and $1500, depending on the complexity of the test, so this type of test is not routinely ordered by a court.

For advice or representation in any legal matter, please contact Armstrong Lawyers.