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Drug Testing in Family Law Matters: How Does it Work?

Madison Kelly ||

When it comes to handing down Parenting Orders, the Family Court’s first and foremost concern is to ensure that the best interests of the child are followed.  The primary factors taken into consideration by the court when determining orders in the child’s best interests are:

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

Undeniably, exposure to drug and alcohol use could be classified as harmful to children, and pursuant to Hogan & Hogan [2008] FamCA 41 these types of concerns are deemed extremely relevant within the context of the Family Court implementing Parenting Orders.  This case of Hogan & Hogan provided that whilst drug use does not necessarily diminish a parent’s love for a child, it does diminish a parent’s ability to care for them.

If either party does have concerns pertaining to the welfare of the child, when proceedings are commenced in either the Family Court or Federal Circuit Court, the party must notify the court of such alleged risk.  It is quite common in cases that involve allegations of risk, including allegations of alcohol and drug misuse and abuse, for an Independent Children’s Lawyer (ICL) to be appointed.
The ICL will usually obtain orders that require either one or both of the parties to undertake drug and/or alcohol testing.  If an ICL is not appointed, either party may request that the court make an order for alcohol and/or drug testing.

The process usually involves either the ICL or the requesting party (or their solicitor) writing to the other party to request that they undertake a drug and/or alcohol test within 24 hours, and thereafter provide the results when available.  The process of random drug testing ensures that the party has no knowledge of when they will be required to undergo the testing, which in turn avoids them having the ability to prepare for such a request in an effort to manipulate the results.

Drug and alcohol testing may continue for as long as the court considers it necessary in order to determine the safety and best interests of the child.  Generally, the costs of alcohol and/or drug testing are required to be paid by the party being tested, although this can vary depending on the individual circumstances of the case.

Which forms of tests are most common?

The most common type of drug testing is urinalysis testing.  Urinalysis testing is widely used due to its quick, cost effective and less invasive (at least as opposed to some other tests) nature.  Another common type of drug and alcohol testing is hair follicle testing – although this can be a costly exercise, and the court will often exercise caution in ordering hair follicle testing.

Within the context of testing for alcohol use, the most commonly utilised tests are ordinary blood tests and comparative liver function tests.  All tests have various pros and cons, in that their effectiveness varies between different types of substances.

If you have a query relating to any of the information in this article, or you require advice with regard to the use of drug testing in family law matters, please don’t hesitate to get in touch with one of Coleman Greig’s Family Law Accredited Specialists.

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