Home » ALA Law Blog » The Relevance of Drug Use in Matters of Family Law
The Relevance of Drug Use in Matters of Family Law
“I Only Smoke a Bit of Weed, so What?”
Prepared by: Carli Heald
It is common in many Family Law matters for one or both parties to raise allegations of drug use, against the other.
The relevance of drug use in any family law matter relates to that party’s parenting capacity and the risk they potentially pose to the children. When determining living arrangements for children, the paramount consideration is the “best interests” of the children. To determine what parenting arrangements are in the children’s best interest, the Court is required to balance facilitating a meaningful relationship between the children and each of their parents, whilst also prioritising and protecting the children from physical harm, or psychological harm by being exposed to family violence or abuse.
There is also a raft of additional considerations the Court is required to look at in determining the children’s best interests.
Court Considerations
In the context of allegations of drug abuse and risk, the Court considers what effect the alleged drug abuse may have on the parent and children. In the case of Hogan decided in 2008, the Court held that “…whilst drug use does not lessen a parent’s love for a child, it does lessen a parent’s ability to care for the child.”.
In that case, and referring to the relevant additional consideration under the Family Law Act, the court also held that:
The Impact of the Extent of Drug Use
Of course, the extent of drug use and its impact on the children’s best interests varies from case-to-case. Once the court has determined the impact or level of use that the drug use presents, they will then consider what time the party alleged to have been using drugs is permitted to spend with children. This may mean that the party alleged to be using drugs is:
- Ordered to spend no time (in the most extreme cases) or supervised time with the children;
- Time with children may be conditional upon drug testing being undertaken; and
- Restraints from consuming drugs before and/during their time with the children.
Prescription Medication Abuse
The Courts not only consider the effect of illicit drug use but also the abuse of prescription medication. Some prescription drugs contain opiates, benzodiazepines, and methamphetamine, which may affect the functioning of the person using them if they are not consumed as prescribed by a medical practitioner.
Parenting Orders and Drug Use
It is essential that any Orders sought regarding a party’s use of drugs is linked to a parenting Order. In the case of JVT the court remarked that “….limits [must be] necessary for the welfare of the child….”, that is, there must a direct causal link between the drug taking and the risk posed to children in a parenting matter.
Drug Tests
There are several types of tests a Court can Order that a party undertake, including chain of custody urinalysis testing, hair follicle testing, blood testing, oral swab or saliva testing and breath testing. The type of testing Ordered will often depend on the type of drugs the party is alleged to be abusing. The length of time a drug remains detectable in a party’s body will also affect the type of test used. For example, in a urine test, amphetamines can be detected for up to two days after consumption and benzodiazepines for up to three days, if a therapeutic dose is ingested.
It goes without saying that the detections levels will vary for each person, depending on their physical characteristics, and level/frequency of drug use.
It is important when drafting Family Law orders, that accurate instructions are obtained about not only the extent of the drug use, but the type of drug used, to ensure that appropriate Orders can be sought in any parenting application.
ALA Law are here to answer any questions you may have regarding Family Law Matters. Contact us to find out how we can help. We listen, and We Care.
Give us a call to discuss your matter further
Please contact us to have arrange a confidential appointment with one of our friendly solicitor