12 Apr 2016

Unfortunately drug abuse is a common problem facing society today. Specifically, the use of the drug known as ‘ice’ has been referred by to as a widespread epidemic. It is therefore quite common for allegations about drug abuse to be raised by a parent in Family Court proceedings.

 

If a parent alleges that the other parent is abusing illicit substances in a way that puts a child at risk of harm, the Family Court will take these allegations very seriously.

 

Under the Family Law Act 1975, the best interests of the child are the paramount consideration when making parenting orders. The Court has the power to order that either one or both parents undergo drug testing to ascertain whether they have the capacity to care for the child or pose a risk of harm, even when these allegations are denied. If you are concerned that your ex is addicted to drugs and your children are not safe, you should request drug testing right away. If your ex won’t agree, you can seek orders from the Family Court that they undergo drug testing.

 

Evidence for Family Court purposes is presented in the form of Affidavits; however this evidence cannot be tested until a Trial. The Court may therefore err on the side of caution when allegations of drug abuse are made and in the interim place the child into the care of the other parent. Drug testing is an easy and effective way to gather reliable evidence about whether or not a parent is using drugs and whether the children are at risk of harm.

 

How are drugs detected?

Drug testing for Family Court purposes can take a number of forms. The most common type of drug testing is urinalysis testing at a pathology laboratory. The collection of a urine sample for this purpose must adhere to the chain of custody provisions in accordance with the Australian Standards. These samples need to be supervised by qualified personnel to ensure there is no possibility of any cheating. Urinalysis testing is usually requested randomly by the other party’s solicitor.

 

Another form of drug testing is hair analysis. This involves a party having a sample of hair extracted from them and tested for illicit substances. Although these tests can be more expensive, the benefit is that they can detect the use of illicit substances dating back a few months. These tests are commonly requested when it has been alleged that a parent has a very serious and ongoing drug problem.

 

How long do drug testing orders last for?

The Court has discretion to determine how long drug testing orders stay in place and it usually depends on the severity of the alleged drug problem. Drug testing orders can stay in place for an indefinite or set period of time. If the other parent’s drug problem is very serious, the Court may want drug testing to continue for up to a year or more. If the alleged drug use is not as serious, a party may only be required to undertake drug testing until six clear tests are received.

 

What if my ex’s drug tests are all coming back positive?

If a parent cannot provide the Court with consecutive clear drug screens, it may be determined that they have a serious addiction that could put the child in harm’s way. If orders are not already in place, the Court may consider removing the child from that drug using parent’s care and placing them in the care of the other parent to ensure that they are not exposed to drug use or put in harm’s way.

At the end of the day, if the other parent cannot show the Court that they can abstain from drug use whether through clear drug screens and/or evidence of rehabilitation, it is unlikely that they will be allowed any unsupervised time with the child.

If you are concerned that your ex may be abusing drugs and putting your children at risk, contact our expert Family Lawyers for advice about your options.

 

This is only general information and does not constitute specific legal advice.  If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.

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