Drug and alcohol testing in family law parenting matters is becoming increasingly common, particularly where concerns are raised about a parent’s capacity to safely care for a child. In Australia, the Court may make orders requiring drug or alcohol testing where substance use is alleged to affect a child’s safety, wellbeing, or developmental needs. For parents involved in these cases, it is important to understand when testing may be ordered, what those orders can involve in practice, and how the day to day impact of a testing regime can be managed.
When Does the Court Order Drug and Alcohol Testing in Family Law?
When making parenting orders, the Court’s primary consideration is the best interests of the child. This means the Court has the power to make both interim and final orders dealing with a parent’s drug or alcohol use where it is relevant to the child’s safety and wellbeing. If the Court is satisfied that a parent’s substance use is affecting, or could potentially affect, the safety of the child or the parent’s capacity to meet the child’s developmental, psychological, or emotional needs, it may make orders requiring drug and alcohol testing.
In some cases, the Court may also grant an injunction requiring a parent to abstain from drugs or alcohol where this is necessary to protect the welfare of the child. Where there is sufficient evidence, including expert evidence or psychological or family reports, showing that ongoing drug or alcohol use poses an unacceptable risk to the child, the Court may order a testing regime at its discretion. This may occur alongside supervised time, or in some circumstances, before any time with the child can begin. Depending on the circumstances, testing may be ordered on a random or regular basis. The Court will always prioritise the safety of the child, even where there may otherwise be a benefit in the child maintaining a relationship with each parent.
How the Court Mitigates Risk to Children
Where there are allegations of alcohol and/or drug abuse, the Court must be satisfied that any risks to the child/ren are mitigated (or preferably ameliorated). However, in the interim stages of a matter, where the Court is unable to satisfy itself as to risks, it can take the following steps to mitigate any such risk. This includes:
- The child spends limited time with the subject parent;
- The parents’ time with the child/ren is being supervised by a professional supervision service or an agreed third party.
- An agreed third party, such as a grandparent or other family member, being in substantial attendance during the child/ren’s time with the subject parent;
- Seeking an order for the installation of an alcohol monitoring system in that parent’s motor vehicle, which requires the driver to pass a breathalyser test before driving; or
- In serious cases, suspending time with that parent.
In addition, the Court may order the subject parent to undergo ongoing drug and alcohol testing, so as to satisfy the Court that the parent does not pose a risk to the child/ren, while in their care. In addition, the Court may also impose further orders such as specific drug and/or alcohol counselling or therapeutic support to ensure that any risk is mitigated even after the matter has been finalised, and final parenting orders are made.
Types of Drug and Alcohol Testing in Family Law
If an allegation of drug and/or alcohol abuse is made in parenting proceedings, then it is usual for orders for testing to be sought at the earliest opportunity to either substantiate those allegations and/or to demonstrate what steps have been taken to reduce or eliminate any risk to a child.
Carbohydrate Deficient Transferrin
Carbohydrate deficient transferrin (CDT) testing is a specific means of testing for excessive alcohol use. This method of testing measures the amount of carbohydrates in transferrin, a blood protein. Excessive alcohol use disrupts the normal attachment of carbohydrates to the blood, and a high amount of carbohydrates in the blood usually indicates frequent or heavy alcohol usage. Generally, the discrepancy in the blood evens out following a sustained period of abstinence from alcohol consumption, so this method of testing is often utilised in proceedings for alcohol testing on a regular basis (e.g., monthly). This may be used along with Liver Function Testing to prove alcohol usage levels.
In practise, this can be requested by an Independent Children’s Lawyer on a frequent basis to ensure parents are complying with court ordered abstinence. It can also be used to disapprove of any allegations posed by a parent who asserts the other parent continues to abuse alcohol. This may be adopted in conjunction with other methods of testing, such as breathalyser requirements and hair follicle testing. A specific blood alcohol level or specified result that indicates alcohol use has ceased or significantly lowered may be required from parents prior to the commencement of parenting orders.
Hair Toxicology Testing
Hair toxicology testing (HFT) is another common means of drug testing implemented in Family Law proceedings, given that the results produced show patterns of drug use over a period ranging up to 180 days. In some cases, drug residue is permanently detectable within the hair follicle. This method involves the collection of a sample of hair from the back of the head, given that this area has the most consistent growth rate. Though it is important to note that samples can be obtained from any part of the body, such as arm or leg hair. The Court may order that a party leave their hair at a specified length, in some cases 3cm or more, and avoid using bleach or any other chemicals in an attempt to modify the results. A mandatory result may be ordered prior to the time commencing with the children. This testing is in line with World Health Organisation Standards and the Society of Hair Testing. This method of hair testing often has to be completed by an accredited laboratory to the recognised international standard of ISO/IEC 17025:2005, which usually contains a chain of custody requirement.
Urine Testing or Urinalysis
Urinalysis tests can detect illicit substances in someone’s system spanning days or weeks prior to testing, depending on the substance and individual factors. Given the shorter detection periods, urinalysis testing is often used in conjunction with CDT testing (for alcohol use) or HFT testing (for drug use). This type of testing can be ordered either at regular intervals or, in most cases, randomised testing.
The benefit of urinalysis testing is that it demonstrates whether a party has consumed alcohol or illicit substances in close proximity to a party potentially spending time with a child/ren.
Similar to HFT testing, urinalysis testing usually implements chain of custody procedures and/or production of photo identification, and such testing occurs at an approved laboratory in accordance with AS/NZ4308 standards. This ensures that the tests are accurate and there is clear transparency.
Given that this procedure is less invasive and more efficient at proving recent alcohol or drug use, this is often included in Orders on an ongoing basis, or at the request of a lawyer or the other party.
Oral Fluid Testing
Oral fluid testing, also known as saliva drug tests, detects substances present in saliva, targeted at recent drug use. This is commonly used in proceedings, given that it is the most efficient means of detecting recent drug use. Generally, these tests are able to detect drugs used by an individual within the previous 3-day period. However, this significantly varies from individual to individual depending on their age, physicality, drug use patterns, and the type of drug. Regardless, it is estimated that oral fluid testing can detect alcohol or cocaine consumed within a 12-hour window, and cannabis, opiates, and amphetamines consumed within the previous 24 hours.
Though this method of drug testing may be beneficial for parties wishing to ensure drugs have not been consumed recently, it does not show previous drug use patterns, which is relevant in a family law proceeding, particularly when attempting to highlight to the Court ongoing abuse behaviours and the parent’s capacity to adequately care for the child/ren. Similar to urinalysis, this may be adopted in a regime to ensure continued abstinence and compliance with any Court Orders, given the efficient way of confirming recent drug use.
What are the Implications for Parents who may be ordered to undertake drug testing regimes?
If a parent fails to comply with the drug and alcohol testing regime requirements, this can negatively impact their case and could result, among other things, in the limitation or even complete suspension of time with their child/ren.
RAMSDEN FAMILY LAW – HOW WE CAN HELP
If you are considering your options in a family law matter or require independent legal advice about care arrangements, particularly where drug or alcohol use may be an issue, contact our experienced family law specialists today. We offer a free 30-minute initial consultation to help you understand your options and guide you on the best next steps to protect your family’s best interests.
The content of this article is intended to provide general guidance on the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.
