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Family Law

Recreational drug use and family law

By June 29, 2017No Comments

By Gianna Huesch

In a recent case in the Family Court in Melbourne, involving a mother who regularly used the drug cocaine, the children have been ordered to live with their dad, with the mother’s time reduced from equal time to “significant, if not substantial” time.

Further, the mother’s time will now be supervised by one of the children’s grandmothers unless the mother’s drug screens are returned as negative. Judge Macmillan ordered the mother to undergo random urine drug screens and hair follicle testing on a monthly basis.

The parents, both in their 40s, have two children aged 10 and 11. The father is a health professional and the mother a businesswoman.  The father had applied for the children’s time with the mother to be reduced and supervised given his concerns with the mother’s ongoing drug use and excessive alcohol consumption. His concerns had previously seen him seek arrangements where the children would not be in their mother’s care on a Saturday night, when he perceived there was a greater likelihood of the mother being under the influence of drugs or alcohol.

Previous orders had already restrained both parties from drug taking or drinking to excess and ordered that drug testing take place on a three monthly basis. The parties also had to refrain from cutting their hair shorter than 4cm or from dying or bleaching their hair.  On each occasion she has been tested, the mother has returned a positive result for substances including cocaine and other metabolites of cocaine indicating heavy cocaine use, despite at one stage having cut her hair to just 1.5cm long.

The mother’s counsel and the ICL both stated there was “no evidence of any harm having been caused to the children in the mother’s care to date that therefore, there was no unacceptable risk of harm to the children in her care”. But the judge disagreed, referring to the mother’s “puerile responses” and relying on the family report which questioned her capacity to “accurately assess her behaviour, the impact of the drug us and her parenting”.

The mother insisted her drug use was within her control and she could stop anytime, but the judge found the mother lacked insight into the effects of her drug use on the children and found the drug use was likely to affect her ability to respond to the kids’ “emotional, intellectual and schooling needs”. The mother was seen being unable to comprehend that the drug use affected “the children’s experience of her.” The judge noted the “after effects of the drug and her ability to be fully present and responsive to the children after drug use” and said the mum “seems to place her pleasure-seeking needs before those of the children”.

The judge remarked that “as a single parent, (the mother) needs to be aware she is alone and solely responsible for the children’s care at all times they are with her. If she is under the influence, she may not be able to respond appropriately and effectively to the children especially in an emergency”.  The father had noted instances where the mother would go to sleep before the children’s bedtime, likely as a result of her drug use.

Also going against the mother was the fact that she didn’t attend ordered family therapy, did not seek professional help for her drug use despite being advised to do so, and was regarded as deficient in relation to taking an interest in the kids’ schooling.

Further, the children had expressed a clear wish to live with their dad. While the mother had described her household as “harmonious and happy”, the family report revealed that the children in fact described their relationship with their mum as “fraught with a level of tension, conflict and emotional insecurity”.  The children reported “feeling stressed with their mother, who fails to prioritise and offers little support with their homework.”

In contrast, the father “provides them with a strong sense of safety, security and stability. He is organised and responsive to the children which reinforces their confidence in him. The children rely on and trust him. Whilst the children love their mother they perceive her as unreliable and not as responsive to their needs”.

As such, the judge took a “cautious approach” and agreed the father likely offered greater stability, and made the interim orders pending the parties’ final hearing in October.

You can read the case here: http://www.austlii.edu.au/au/cases/cth/family_ct/2017/385.html

Do you need assistance with a family law matter involving a parent who is a drug user? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400 for expert advice.

Please note our blogs are not legal advice. For information on how to obtain the correct advice, please contact Alliance to arrange a free first conference.

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