By Caitlin Elliott – Senior Associate
Drug use in Australia has increased in recent years, according to the Australian Institute of Health and Welfare. The “Alcohol, tobacco & other drugs” (2023) and “National Drug Strategy Household Survey 2019” (2020) reports found:
- 43% of Australians aged 14 and over had used an illicit drug in their life, with 16% having used one in the last 12 months.
- 4% of Australians aged 14 years and over had misused pharmaceutical medications in 2019.
- The most common substance used was cannabis, followed by amphetamines, prescription drugs, cocaine and ecstasy.
- During the COVID-19 pandemic, there was an increase in the use of illicit and prescription drugs.
Allegations of drug use and alcohol misuse are common in disputes about parenting arrangements.
When determining parenting arrangements, the Federal Circuit and Family Court of Australia must make orders that are in a child’s best interests, including orders that keep children safe. Given the potential risks to children, the Court takes allegations of parents using drugs and abusing alcohol very seriously.
What drug and alcohol testing does the Court require in parenting matters?
To investigate allegations of drug use or alcohol abuse, the Court can order a person undertake:
- Urine tests. These can show if a person has used drugs in the last few days. Urine tests are easy to collect and typically less expensive than other tests.
- Hair follicle tests. These tests are more reliable, and more expensive, than urine tests. Hair follicle tests typically measure drug consumption over the previous 3 month period.
- Breathalyzer tests.
- Blood tests, such as liver function tests.
Tests ordered by the Court are often randomly requested and are usually supervised by a professional to ensure a person undergoing a test cannot “cheat” the test.
The results of any drug or alcohol test must be provided to the other parent and the Court.
What sort of parenting orders can a Court make where drugs and alcohol are an issue?
If there is evidence of drug use or alcohol abuse by a parent, the Court may:
- Limit the children’s time with that parent.
- Require the children’s time with that parent to be supervised.
- Order that parent undergo a breathalyser test just before their child spends time with them and that the time only occur if the parent’s blood alcohol is zero.
- Order that parent undergo counselling or treatment, with reporting on this.
Court Orders dealing with drug and alcohol risks can be made on an interim (short term) or final (long term) basis.
Recent parenting case considering drug use
Drug use was an issue before the Court in the recent case of Malena & Talat [2024] FedCFamC1F 28. Malena & Talat concerned parenting arrangements for two children aged 9 and 10. The December 2023 hearing proceeded on an undefended basis.
The facts of the case are summarised below:
- The children were living with the father and spending no time with the mother at the time of hearing (despite there being Orders in place for the children to spend time with the mother each Sunday). The children had lived predominantly with the father since separation in 2016, and the mother had not participated in decision making for the children since about 2018. Prior to separation the mother was the children’s primary carer, with the assistance of the father’s mother.
- The father commenced proceedings in May 2019. The father’s application was for sole parental responsibility (now known as sole decision making on major long term issues under the recently amended Family Law Act 1975 (Cth)) and for the children live with him and spend time with the mother conditional upon the results of her hair follicle tests. The mother did not seek any final Orders. Her position (as stated to the Court Child Expert) was that she was prepared to accept whatever Orders the Court made.
- The father made significant allegations of drug use by the mother, which he alleged (and the mother admitted) had commenced around the time of separation. The mother had been incarcerated on two occasions for drug related matters in 2016 and 2017. She underwent multiple urine and hair follicle tests during the proceedings, some of which were negative and some of which were positive for illicit substances. Notably, the mother returned hair follicle tests positive for an illicit substance as recently as 2022 and 2023. The mother also made allegations of drug use about the father. The father had been charged and convicted for a drug related offence in 2022.
- Family violence perpetrated by the mother (on the father, his new partner and the mother’s new partner) and the mother’s mental health were also issues in the proceedings. The parties had no co-parenting relationship.
- The Court Child Expert identified the children being exposed to the mother’s substance abuse as a primary concern, given the evidence suggested the mother had been using illicit substances recently, and held genuine concerns as to the mother’s lack of insight on the issue. Due to the risk to the children in the mother’s care the Expert recommended the children spend supervised time with the mother on a final basis. That position was supported by the Independent Children’s Lawyer.
In determining what final Orders were in the children’s best interests (noting that the hearing proceeded before recent amendments to the Family Law Act 1975 (Cth)) the Court found the evidence suggested a cautious approach regarding the children’s time with the mother. Final Orders were made for the children to live with the father and spend supervised time with the mother at least once per month, and for the father to have sole parental responsibility (now known as sole decision making on major long term issues).
Allegations of drug use, whether established on the evidence or not, can have a significant effect on family law disputes. If you are involved in a family law dispute and have used drugs, or you are worried your former partner has, please contact us on 03 8672 5222 to arrange an appointment with one of our expert family lawyers.
