News

15 October 2019

Drug Testing in Family Law Matters

Drug and alcohol use is a rising social issue both in Australia and worldwide.  The National Drug Strategy Household Survey[1], conducted in 2016, produced the following alarming statistics:

  1. 1 million Australians, aged 14 years and older, had used illicit drugs in the 12 months prior to the survey, which equates to roughly 16 per cent of the population at the time;
  2. 1 in 5 Australians who reported meth/amphetamine use, also reported using the drug at least weekly;
  3. 4 out of 10 Australians either smoked daily, drank alcohol in risky quantities or used an illicit drug in the 12 months prior to the survey;
  4. 10 per cent of drinkers drove while under the influence of alcohol in 2016;
  5. 1 in 20 had misused pharmaceuticals in the 12 months prior to the survey; and
  6. 1 in 10 Australians aged 14 years and older had been a victim of an illicit drug-related incident in the previous 12 months.

These statistics will shock many.  As a family lawyer it is not uncommon for parents to raise concerns regarding the other parent’s use of illicit substances, alcohol intake or dependence on pharmaceuticals.

In parenting disputes, the paramount consideration is “what is in the child’s best interests”.  In determining what is in the child’s best interests, there are two primary considerations:

  1. “the benefit to the child of having a meaningful relationship with both of the child’s parents; and
  2. “the need to protect the child from physical or psychological harm, from being subjected to, or exposed to abuse, neglect or family violence.”

Substance use is directly relevant to the court’s responsibility to protect a child from harm.  Substance use will typically have a significant impact on the parenting orders that a court will make.

Where allegations are raised, it is common for the parent who is the subject of the allegation to undergo drug testing.  If the parent wishes to defend the allegation, they may submit to drug testing willingly.  If the parent does agree to undertake drug testing, then the court has the power to require that parent to undergo testing.

When making orders for drug testing, the court must consider, among other things, the type of testing, the frequency and process for requesting a test, the timeframe in which a test is to be undertaken, chain of custody issues, the process for obtaining a sample and the consequences of a negative test result.  As a result, the drafting of drug testing orders has become very technical.

The different types of drug tests

When an allegation of illicit substance use, misuse of prescription medication or pharmaceuticals or alcohol dependency is raised, consideration needs to be given as to what type of testing is appropriate and will most likely capture use.  Different tests will be more suitable depending on the frequency, duration, quantity and timing of usage.

The most common types of testing include the following:

  1. Urine analysis: which can detect prescription and illegal drugs as well as alcohol. This testing, is limited in that it can usually only detect use a few days prior to the test and the accuracy of detection depends on the individual being tested and level of usage;
  2. CDT testing: (for alcohol) which can detect high alcohol usage for a period of up to two weeks. The reliability of detection will vary depending on the individual and the quantity and frequency of use during the detection period;
  3. EtG testing: is a type of hair follicle testing which can test alcohol use for up to three months; and
  4. Hair follicle testing: which can detect a variety of illegal and prescription drug use for up to three to six months depending on the length of the hair sample.

Which test, or combination of tests is appropriate, will depend on the alleged substance used, the timing of the use and the pattern of consumption.

If you require assistance with your family law parenting matter, or have concerns regarding your children or the other parent that you wish to discuss, please do not hesitate to contact one of our Cairns and Mareeba family lawyers today on 07 4036 9700.

[1] https://www.aihw.gov.au/reports-data/behaviours-risk-factors/illicit-use-of-drugs/overview

Signup for all the latest news + offers

Share This

Select your desired option below to share a direct link to this page