Drug Testing in Family Law Matters

What does Drug Testing involve

Drug testing involves the collection and evaluation of a biological fluid sample to determine the suspected usage of drugs and alcohol. In family law matters, the Court will decide which method of drug testing is most efficient, often based on what drug or drugs they are testing for and why. Typically, the Court will use urine testing as the fastest way to provide a result, however they may opt to use blood test for a faster result or a hair follicle test for a longer lasting result.

Drug Testing in the Courts

Although not specifically mentioned in the Family Law Act, the prevalence of drug use can pose a significant risk to children. Subsequently, drug testing may influence the court’s decision in parental responsibility and other parenting matters. Prior to court processes beginning, parties are required to submit a Notice of Risk, in which they are obligated to disclose allegations of abuse or neglect, including, but not limited to, parental drug or alcohol abuse. An Independent Children’s Lawyer may request a drug test if they believe it necessary. Regardless, the court will exercise its discretion in determining whether an order for drug testing is necessary.

It is important to recall the best interests of the children as outlined in the Family Law Act:

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

These primary considerations require that all risk to the children is minimised – the Court may feel that drug use perpetrated by the parent(s) falls into this category of unacceptable risk. Where an allegation of drug abuse has been made, the court will often order that a parent undertake both regular supervised as well as random drug testing, and a hair follicle test.

Receiving a Positive Drug Test Result

Regardless of the method of drug testing used, a positive drug test is not equivalent to a presumption that you are not fit to receive child custody. However, drug use can inhibit parental capacity, and will therefore be taken into consideration in parenting matters. In regard to recreational drug use, the court acknowledges that this is generally less harmful than drug use due to dependence – however recreational drug use may still pose a risk and will still be given weight.

The court may approach a positive drug test result by reducing the parent’s time with the child, or potentially ordering supervised time between the parent and child. Depending on the factors of each case, such orders may be made on an interim basis, until a negative sample has been produced.

If you need further advice from our expert family law team, please contact us on 1300 749 709 to see how our experienced team can assist you.

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