Drug use allegations are quite common in the family court system, just as drug use is unfortunately common in society. So how do the family courts treat drug and alcohol allegations in parenting disputes? How do courts strike a balance that allows a child to have a meaningful relationship with both parents while mitigating any risks of harm to the child at the same time? Let’s take a quick look at issues around family law drugs and alcohol.
When is drug and alcohol use relevant in the family courts?
Australia’s Family Law Act 1975 makes it clear that primary considerations when making orders is to ensure the child is able to have a meaningful relationship with both parents provided there is no unacceptable risk of harm to the child in maintaining that relationship. Risk factors to assess include any allegations of misuse of drugs or alcohol by a parent.
When parents consume drugs or are under the influence of alcohol during time they are caring for their children, the children are exposed to potential harm, including harm as a result of bad parental decision making, a dangerous lack of supervision, family violence caused by a drug-affected parent, passive inhalation or accidental ingestion of drugs, and risk of being exposed to criminal behaviour. The parent may simply be emotionally unavailable, which can have long-lasting effects on a child.
As part of the process of risk assessment, courts have to assess whether the parental drug/alcohol use is impacting the parent’s capacity to care for the child. Each case is assessed on its merits, and outcomes vary widely. For example, alcohol is a legal drug in our society and its use in itself doesn’t render a person an unfit parent. It typically only becomes a problem in the family courts if there is evidence that the parent is drinking to excess and this is impacting on the children. For example, jeopardising the safety of children if driving intoxicated.
Starting court proceedings – Notice of Risk
While drug use is not specifically mentioned in the Family Law Act 1975, allegations of drug and alcohol abuse must be disclosed in the Notice of Risk document that is filed by both parties prior to commencing court proceedings. Where parental drug or alcohol use is excessive or undermines the meaningful relationship between the parent and child, or creates the need to protect the child from harm, the courts will need to assess the risk to the child in making orders which are in the best interests of the child.
If you already have orders…
If you already have parenting orders in place but wish to change them based on your suspicions of your co-parent’s drug or alcohol misuse, the process of changing them through the courts can be time-consuming and expensive. To modify parenting orders, it’s necessary to show a material change in circumstances. In this context, this means providing the court with evidence, of two kinds: firstly, evidence of the drug or alcohol misuse by the parent, and secondly, evidence of that parent’s behaviour which has raised concerns over risk of harm to the child. A link needs to be clearly established between the drug/alcohol misuse and the behaviour causing the unacceptable risk of harm. Gathering evidence to establish this can be quite tricky and awkward at times but you need strong evidence to succeed here. Recording your ex’s out of control or irresponsible behaviour and diarising missed visitations may help.
If there are allegations of drug abuse, the courts may seek evidence by way of ordering drug testing. This may be hair follicle tests, blood tests or urine tests. Once a court has facts on the drug issue, it can determine how to proceed on parenting matters. Such testing can be for a fixed time period but can also be ordered to continue with no fixed end date. It can be regular or random.
The courts can also limit a parent’s time with their children, or require it to be supervised until, for example, the parent can show evidence that their capacity to parent is no longer affected. There is no hard and fast rule, and matters are decided on a case-by-case basis, determined by individual situations and the evidence presented as to the parent’s ability to effectively parent.
While the court process may lead to an alcoholic or drug-abusing parent having their time with the children restricted or supervised, it is uncommon for the courts to completely cut off contact with the children, especially if the impaired parent is undergoing treatment and is actively pursuing sobriety. Courts may order ongoing monitoring or temporary screening as a condition of time with the child. They can also compel counselling and therapy to assist the impaired parent.
What about legal marijuana?
When it comes to family law drugs and alcohol, medicinal cannabis is another kettle of fish, after usage of medicinal cannabis was legalised at the federal level in 2016. Australia’s medicinal cannabis laws however have heavily restricted use, with users limited to patients suffering from serious illnesses such as MS, epilepsy, cancer or HIV/AIDS, or elderly end-of-life patients. As such, the issue is unlikely to be quite as relevant in family law proceedings in this country for now. Should courts start restricting a parent’s care arrangements on the basis that they are medical marijuana patients, it may be that added protections would become necessary for such legal users. For example in some states in the US, courts are explicitly prevented from rescinding parental rights solely based on someone’s use of medical marijuana.
Note that the family courts typically take a cautious approach where there are allegations of risk concerning drug or alcohol abuse. The aim will be for the court to put safeguards in place both on a temporary (interim) basis and on a final basis after a hearing. This is because although the court is required to balance the need to protect a child from risk with the need for the child to have a meaningful relationship its parents, the need to protect the child is of paramount importance.
Family law drugs and alcohol – if you need help with a family law matter involving allegations of substance or alcohol abuse, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400 for a confidential discussion of your circumstances.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.