Substance Abuse is increasingly becoming a live issue in many family law matters because it is oftentimes a predictor of, or an indicator of Family Violence. It is important to understand the impact of Substance Abuse in a family law context but more importantly, how substance abuse may impact upon children. This article covers how certain substances can be detected, the health issues they might create, and how a Court views Substance Abuse generally. This article, by Daniel Rod, an Accredited Family Law Specialist at Ramsden Family Law, will also explore the practical considerations surrounding drug-related issues in family law matters and aims to provide insight into when drug testing is needed, why it matters, and the intricate intersection of family law and criminal law in cases involving substance dependency.

When is Drug Testing Needed in Family Law?

In the realm of family law, drug testing becomes a pivotal point of consideration in various scenarios:

  1. Parenting Disputes: Drug testing most commonly arises in parenting disputes, where one parent alleges that the other uses drugs recreationally, excessively, or has a substance dependency. These allegations often lead to questions about the impact on the child’s safety and well-being. Usually, these matters involve allegations that one parent poses a risk to the children and therefore the alleging party would generally be asking a court to take a cautious approach and limit the time the other parent spends with children until such time as the risk can be mitigated.
  2. Family Violence Cases: In situations where family violence is present, substance misuse can compound the issue, raising concerns about the child’s exposure to potentially harmful situations. This also arises in the context of a risk of abuse to the children, or whether they will be exposed to neglect in the care of the parent living with addiction.
  3. Determining Custody: The ultimate goal of family law is to determine the child’s best interests. Substance abuse can directly impact a parent’s capacity to meet a child’s needs, as it can lead to neglect, abuse, or impaired decision-making. This is explicitly outlined in Section 60CA and Section 60CC of the Family Law Act 1975.

Practical Considerations in Drug Testing

Before proceeding with drug testing, it’s essential to address several practical considerations:

  1. Client Compliance: A solicitor with carriage of a matter where their client lives with an addiction will be required to assess whether that party is willing to comply with testing orders. A party must understand the potential consequences and costs associated with testing – which we will discuss below.
  2. Risks of Positive Results: Discuss the possibility of a positive test result with your lawyer and work with them to help find treatment. It is crucial to consider how this outcome may affect your case and the relationship with your child.
  3. Financial Capacity: Ensure you have the financial means to cover the costs associated with testing. This includes initial tests, follow-up tests, and potential court applications.
  4. Alternative Evidence: Explore other sources of information that can support your case. Witness testimonies regarding drug use or addiction can provide valuable context.
  5. Substantiated Allegations: Be cautious against making unsubstantiated substance abuse allegations, as this can damage credibility and erode trust, potentially harming your child’s best interests.

Types of Drugs Tested For

Drug testing in family law cases typically covers a range of substances, including:

  1. Amphetamines: These drugs can lead to increased energy, alertness, euphoria, and heightened focus. Long-term abuse may result in cardiovascular problems, cognitive deficits, and mental health issues.
  2. Methamphetamines (Meth): Meth use leads to intense euphoria, decreased appetite, hyperactivity, and increased focus. Long-term abuse can cause severe dental problems, weight loss, and cognitive impairments.
  3. Cocaine: Cocaine users experience euphoria, increased energy, inflated self-esteem, and decreased appetite. Prolonged use can lead to nasal damage, respiratory issues, and cardiovascular diseases.
  4. Marijuana: Marijuana use results in euphoria, relaxation, altered perception, and increased appetite. Long-term use may lead to memory problems, diminished lung function, and decreased motivation.
  5. Opiates: Opiates provide pain relief, euphoria, drowsiness, and slowed breathing. Prolonged use can result in respiratory depression, overdose risk, constipation, and cognitive decline.

Getting Drug Testing Right

Several methods are used for drug testing, each with its advantages and limitations:

  1. Urine Testing: This method detects recent drug use, typically within hours or days. Tests should be random, supervised, and conducted within 24 hours after being requested.
  2. Hair Follicle Testing: Hair testing reveals a history of drug use over weeks rather than days. The ideal hair length for testing is typically 1 to 3 centimetres.
  3. Saliva Testing: Saliva tests are often used for on-the-spot testing, providing immediate results for some drugs.
  4. Blood Testing: Blood tests can provide accurate results but are less common due to their invasive nature.
  5. CDT/Liver Function Testing: This is used to assess liver functions and looks for abnormal readings that are generally considered to be markers for chronic binge drinking.

Who Bears the Cost of Testing?

The financial responsibility for drug testing typically falls on one party, with potential reimbursement by the other. This cost-sharing approach aims to ensure fairness in the process.

Requesting Drug Testing

An Independent Children’s Lawyer (ICL) may often request drug testing to maintain impartiality. This approach can help convince the court that the testing is appropriate and proportionate to the case. If you’re the party requesting the test, it’s crucial to have insight into the other party’s habits to determine the best timing for testing.

Consequences of a Positive Test Result

Positive drug test results can have significant repercussions:

  1. Suspension of Time: You may need to suspend your parenting time with the other parent.
  2. Revisiting Orders: Consider if your orders allow for a relisting of the matter at short notice or provide for a suspension of time.
  3. Responsibility: Ensure you understand the implications of failing a drug test and its impact on your family law matter.

Standard of Testing

Adhering to Australian Standards is crucial for drug testing accuracy. Different testing methods have specific standards to ensure reliability and consistency.

Look to the following standards and ensure that testing is conducted at an accredited laboratory to these standards:

  • Urine: Australian Standard AS 4308:2008
  • Oral fluid (AS 4760-2006)
  • Saliva: AS/NZ 4308:2008 Appdx A and NATA accredited
  • Breath Alcohol screening must be consistent with AS3457:1997 testing requirements using calibrated, hand-held Type-2 electronic devices
  • All testing providers should be accredited by National Association of Testing Authorities (NATA)

Conclusion

The intersection of family law, criminal law, and substance abuse is a complex and sensitive area. Both lawyers and clients must navigate this terrain with care and empathy. Family law cases involving drugs and substance misuse require expert guidance to ensure the best outcome for all parties involved.

RAMSDEN FAMILY LAW – HOW WE CAN HELP

If you face such a situation, consult our experienced family law specialists at Ramsden Family Law. We are here to provide you with the necessary legal support and guidance to protect your family’s best interests during this challenging time. Empathy and understanding are crucial to helping clients through these difficult situations.

Our team of dedicated family law specialists brings extensive experience to the table. We understand the nuances of family law cases involving substance abuse and criminal elements. We offer comprehensive legal support tailored to your specific situation. Whether you’re dealing with parenting disputes, family violence issues, or custody battles, we have the expertise to guide you.

We recognise the emotional and personal challenges you may face in these situations. Our approach is rooted in empathy, ensuring you receive the support you need during difficult times. Our primary goal is to safeguard your family’s well-being and best interests. We work diligently to achieve outcomes that prioritise your family’s future.

Every family law case is unique. We provide customised solutions and legal strategies tailored to your specific circumstances. Ramsden Family Law has a strong track record of successfully handling family law cases, including those involving substance abuse issues.

If you’re facing family law challenges related to substance abuse or criminal law, don’t hesitate to contact Ramsden Family Law. Your family’s future is our top priority, and we’re here to provide the guidance and support you need.

The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.

Written by Daniel Rod

Posted in: Domestic Violence, Latest News, Other

January 25 2024