Substance dependency is a common issue that arises in parenting matters and consideration must be given to how a historical or current drug and alcohol dependency is weighed and managed in assessing any risk to a child to promote arrangements that are in a child’s best interest. As part of the management of the risks to children that historical and current dependencies pose, accurate and reliable testing methods can be used in family law matters. It is not uncommon for parents in the pre-action stages of a parenting dispute to agree to a regime of drug testing or for a Court to exercise its discretion and make an order for drug testing.
This article will explore the significance of different types of testing in family law matters, the beneficial impact of this testing on assisting in determining what arrangements are in the best interests of the children and consider two cases where there was a failure to engage in testing.
Hair Follicle Testing
One type of testing is hair follicle testing. Unlike other forms of testing such as urine or an oral fluid tests, hair follicle testing enables detection of drug use or alcohol use to excess within the last 90 days provided a hair sample can be obtained of the requisite length. (As part of a hair follicle testing regime, it is not uncommon for part of an agreement between parties or a Court order to include a restraint on a party from cutting their hair.) This premium method of testing is more expensive than other forms of testing, however it is only required at less frequent intervals of 3 months.
When an individual consumes drugs or drinks alcohol to excess, traces enter the bloodstream and is deposited into the hair as it grows. Hair follicle testing involves the collection and analysis of a small sample of hair from the scalp to detect substance usage over the past 90 days. The test is effective in offering a longer detection window than urine or saliva tests. It can detect a wide range of substances including alcohol biomarkers, cocaine, methamphetamine, Eve (MDEA), opiates (heroin, codeine, morphine, oxycodone, hydrocodone), marijuana, ecstasy (MDMA) and phencyclidine (PCP).
There are many providers of hair follicle testing in Australia. The Australian Workplace Drug Testing Services (AWDTS) is an example of an organisation utilised by practitioners in family law proceedings. It provides hair follicle testing for criminal, family, personal injury and industrial law matters. Each testing service provider has a process where they collect the hair sample, test the sample and provide results in a secure way. Through AWDTS it is necessary for an appointment for a sample of hair to be collected at an AWDTS clinic. The sample collection is conducted by a qualified and certified collector in accordance with their protocol which includes a chain-of-custody procedure.
Carbohydrate-Deficient Transferrin Testing (CDT)
Carbohydrate-Deficient Transferrin Testing is a form of testing that may be ordered by the Court in cases where there is suspected alcohol dependency. CDT testing is efficient in measuring an individual’s alcohol consumption over an extended period of time, and is a sensitive indicator of chronic alcohol abuse. CDT testing may be used in conjunction with other assessments such as urine, blood or hair follicle drug testing to create a clearer picture of the party’s lifestyle and how this may impact their ability to provide adequate care for a child.
Panel Drug Testing
Additionally, the Court may order a party to undertake a ‘panel drug test’. This refers to a type of drug screening that tests for the presence of a multitude of substances in a single sample through urine, blood or hair. This may be another method of drug testing undertaken by the Court to assess a parent’s fitness to take care for a child.
How is Drug and Alcohol Testing Used in Family Law Matters?
The paramount consideration of the Court in family law proceedings is the best interests of the child, which includes a consideration of what arrangements promote the safety of the child and other factors such as the benefit to children of having a relationship with each parent.
Testing provides scientific evidence of whether a parent has or has not been affected by a substance. This is critical information to assist in determining what agreements should be reached or orders should be made in relation to a child.
For example, where test results show that a parent is using drugs or consuming alcohol to excess and there is other evidence to suggest that it is impacting upon their parental capacity, the Court may restrict that parent’s capacity to be involved in making long term decisions for the child, and may allocate sole parental responsibility on an interim or final basis to the other parent.
Further, confirmation of positive drug use or consuming alcohol to excess can lead to certain protections being put in place for the child. For example, it may lead to the suspension of all time between the affected parent and a child, or it may lead to professionally supervised time to still enable a child to maintain a relationship with that parent (provided it is otherwise safe to do so).
Where a parent has historically been dependent on drugs, negative hair follicle tests are a useful tool to measure that parent’s recovery from drug use. Repeated negative hair follicle tests can be helpful in guiding parents through negotiations, or in assisting the Court, to set out a pathway forward of spend time arrangements between a child and the parent who was previously affected by drugs or alcohol where arrangements can transition from a supervised setting to unsupervised.
Testing can also be a means by which a parent who is not dependent on a substance but who is accused by another parent of having a substance dependency, can prove that they are not dependent and that they do not pose a risk of harm to the child.
Case Examples
Briggs and Gerber [2017] FamCA 1126
In this matter, the mother was the primary carer of two children aged 12 and 14. There were interim orders made for the father to spend time with the children on alternate Saturdays. However, the mother raised concerns that the father posed an unacceptable risk to the children due to alleged illicit drug usage and dealing. This was supported by text messages which one of the children obtained from the father’s phone. As a result, the Independent Children’s Lawyer requested that the father undertake hair follicle testing. However, the father failed to comply with the drug screening on three occasions without reasonable excuse, allowing the Court under their discretion to draw in inference in relation to the father’s drug use and that such drug usage would ultimately put the children at risk. The Court ordered that the father may only spend time with the children each alternate Sunday provided that he first undergoes hair follicle testing which is negative for illicit drugs.
Cayson and Arvidis (No 2) [2023] FedCFam 1602
This case concerned two young children aged 6 and 4. The mother failed to comply with court-ordered hair follicle drug testing and subsequent psychological assessments without reasonable excuse. This was despite being provided ample notice and opportunity to participate. As a result, the Court ordered that it was in the best interests of the children to remain living with the father due to the respondent mother’s non-compliance and inability to demonstrate abstinence from illicit drugs and stable mental health.
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 drug and alcohol testing. 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.
If you’re facing family law challenges related to substance abuse, 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.
Posted in: Case Studies, Parenting
April 16 2025
