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Drug Testing in Family Law Matters

By 4 October 2018Family Law
children on bridge

Divorce, separation, and the breakdown of the family relationship is one of the hardest and most challenging things many Australians will face in life. But as difficult and emotionally draining as this experience can be on its own, when combined with the pain caused by addiction, it can feel impossible to reach a place where you and your family feel safe. The prevalence of drug use in today’s society means it has become increasingly common for allegations of drug abuse to be raised in Family Court proceedings. If you or a loved one has questions about how drug use may affect their family law matters, contact a lawyer as soon as possible for the most accurate legal advice possible.

In the Child’s Best Interests   

The primary concern in a family law matter is the wellbeing of any children involved in the proceeding. While a parent who is struggling with drugs is fully capable of loving their child, there is the question of whether they are able to provide adequate care. When there is an allegation of drug abuse or dependence, therefore, it is a highly relevant matter in ultimately deciding the living arrangements and childcare agreements.

When Will a Drug Test Be Ordered?

If there is reason to believe a parent is using drugs or there is some risk to the child involved, a Notice of Risk will be filed with the Family Court within the initial application. The Notice of Risk will also be sent to the relevant child protection agency in your state for it to develop a report regarding the family’s situation. Because of the Court’s responsibility to protect the children from the potential harm caused by a drug-using parent, they will allow tests to be ordered.

How Does the Court Administer Drug Tests?

Independent Children’s Lawyer: In the event that the child(ren) in question has had an Independent Children’s Lawyer (ICL) assigned to their case, it is the responsibility of this ICL to request random drug testing. The requests generally need to be made in writing and require that the party to be tested complies within 24 hours of receiving the request. After undergoing the test, the results need to be provided to all parties involved. Random drug testing will continue for as long as the Court deems necessary to ensure the safety of the children.        

Direct Requests: When no ICL has been appointed in the case, the involved parties can request drug tests against one another. In a scenario where requests are being made by the parties themselves and are not at the request of an ICL, the Court will place limits on how many drug tests will be allowed.

Refusal to Take the Test

If a party who has received a drug test request refuses to take one, the Court will infer a positive result. If a party has a legitimate reason as to why they couldn’t take a drug test, however, the Court may be more lenient but the party will have to provide sufficient documentary evidence to support their inability to take the test.

Type of Drug Testing

Urine: Urinalysis is the most common type of testing ordered by the Court due to its efficiency and cost effectiveness. Testing urine is non-invasive and the test results are returned quickly. But urinalysis only really tests whether a person has recently used drugs and doesn’t indicate any evidence about drug use over a period of time.

Hair: Unlike urinalysis, testing hair does provide a longer view of a person’s drug use habits. Despite the higher costs associated with testing hair follicles, Family Court has begun moving towards hair analysis to better assess drug use over a period of time. In circumstances where hair will be tested, the Court may limit the party’s ability to cut and/or dye their hair, as it may affect the integrity and accuracy of the test.

Blood: Blood testing is generally used when the abuse in question is that of alcohol rather than drugs.

Costs of Drug Testing

Generally, the costs of the drug tests will be paid by the party who is required to undergo the testing, but occasionally the costs will be distributed differently according to the unique circumstances of the case in question.

If you have questions, concerns, or are in need of support in the face of a family matter which involves allegations of drug abuse, please do not hesitate to contact a professional lawyer to represent your best interests and those of your family.