How does drug use affect my child custody matter?
Unreliable. Erratic. Secretive. Chaotic. Aggressive. Dishonest. Careless.
If your partner is using drugs, it is likely that these words have crept into your vocabulary.
These are certainly not qualities one looks for in a babysitter, day care or your child’s school. So should you tolerate this standard of care from your partner – your child’s own parent – if they are using drugs?
It’s more common than you think
Drug users are often stereotyped as wild party goers, lost teenagers and wayward addicts. And while this description rings true for some, substance abuse does not discriminate. In fact it is on the rise in the Australian population.
The National Drug Strategy Household Survey by the Australian Institute of Health and Welfare found that in 2016, approximately 3.1 million Australians reported using an illegal drug.
In a population of 24.1 million in 2016, this equated to illicit drug use by more than 1 in 8 people.
The most common substance abuse drug of choice was found to be cannabis, followed by the misuse of prescription drugs, cocaine and ecstasy. Statistics also showed a disturbing increase in the frequency of use by those using crystal methamphetamine (commonly referred to as “ice”).
Allegations of drug use are just as common in family law as they are in society.
Why bring up drug use in family law matters?
A drug use allegation in family law may be most relevant to determining the outcome of a matter when it poses an unacceptable risk of harm to a child. It is only relevant when it poses an unacceptable risk of harm to a child. Such risks of harms can include: dangerously inadequate supervision of a child, domestic abuse stemming from the drug using parent, or passive inhalation of illicit substances.
How do you prove drug use is a problem?
Once a drug use allegation has been raised, it must be proven. The Family Court will not accept a suspicion of “I just know”. Two types of evidence are necessary in these circumstances:
- Evidence of drug use; and
- Evidence of behaviour which raises a concern about the unacceptable risk of harm to a child.
There must be a connection between the two – the drug use must give rise to the behaviour raising an unacceptable risk of harm.
Is drug testing always required by the Family Court?
The Family Court takes these allegations very seriously.
Keep in mind that a Magistrate or Judge does not know you or your partner personally and cannot make findings of fact on an interim basis.
Where drug use is denied by a parent, then drug testing will be used to provide evidence (or lack thereof) of any drug use. It is the most effective way to substantiate an allegation and will almost always be ordered by the Family Court.
What does drug testing involve?
If you are proposing that the Family Court makes orders for a specific drug testing regime – it is important to do your research. You should understand the detection windows for each type of testing and identify how quickly each specific drug may be expelled from the body.
Drug testing can take many forms, varying in cost and reliability:
- Urinalysis testing;
- Hair follicle testing;
- Blood testing;
- Oral swab or saliva testing; and
- Breath testing.
In our experience, the most common methods that the Family Court orders are urinalysis testing and hair follicle testing.
Both types entail testing of a sample – whether urine or hair strands – to detect prescribed levels which indicate the use of varying types of drugs. In serious cases, the Family Court may order multiple methods at the same time.
The Family Court will often favour a random testing regime that minimises the period between notice that a test is required and collection of the sample. This element of surprise denies the alleged drug user the opportunity to abstain from use of drugs and consequently, prepare for the testing.
What happens if the drug testing returns a positive result?
Section 60CC of the Family Law Act 1975 (Cth) guides the Family Court when determining ongoing parenting arrangements. In essence, the Family Court will balance two primary considerations:
- the benefit to the child of having a meaningful relationship with both parents;
- the need to protect the child from physical or psychological harm.
If there is an unacceptable risk of physical or psychological harm, the Family Court will take measures to eliminate the risk by ordering:
- Protective measures and safeguards during any time spent with the drug using parent; and/or
- Minimised time or suspension of time with the drug using parent.
What are protective measures and safeguards?
The Family Court may make a variety of orders that seeks to minimise any risk of harm to a child during their time with a drug using parent.
There is no one-size-fits-all safeguard and the Family Court will determine an appropriate order based on the merits of each case. However, common orders involve one or a combination of the following:
- Supervised contact at an independent supervision agency;
- Ongoing drug testing, whereby contact is minimised or suspended if further positive results are returned; and/or
- Rehabilitative group therapy or individual counselling.
The Family Court may also appoint a Single Expert Witness to your matter. An SEW will look at the circumstances and make suitable recommendations for protective measures and safeguards.
When does the Court make a “suspension of time” order?
The Family Court will usually only make suspension of time order as a last resort. As mentioned earlier, the Family Court’s primary considerations is the benefit to a child of having a meaningful relationship with both parents.