In parenting disputes, it is common to see parents requesting drug testing in the Family Court.
Drug use is not specifically mentioned anywhere in the Family Law Act 1975, but drug use – whether that is because of addiction or for recreational purposes – can have an impact on the court’s orders for custody and parental responsibility.
The best interests of the children are of the highest importance when determining the outcome of a parenting dispute and part of the court’s responsibility is to reduce any risk posed to the children, including risks due to parental drug use.
The results of a drug test may influence how much time a parent can spend with their child and what kind of contact they may have.
At the same time, testing positive for a drug test does not mean you automatically lose child custody in Australia.
Family Court-Ordered Drug Testing
In a case, one party may allege that the other abuses alcohol or illicit substances.
Parties are required to submit a Notice of Risk document to the court before the process begins.
In this document, they must disclose any allegations they have that the other party puts the child at risk of abuse or neglect.
The Independent Children’s Lawyer, who represents the needs and best interests of the child or children involved in the parenting dispute, can also request a drug test.
The court exercises its discretion when deciding whether to make an order for drug testing.
Any refusal to partake in the drug testing will be followed by the presumption of a positive test result.
Drug testing is usually done in between court dates, with the test results provided to all parties to the court proceedings before the next date.
Generally, each party pays for their own drug testing.
The court is not required to set an end date for random drug tests; drug testing can continue for as long as the court orders.
They may be satisfied with the results after three months, or they may wish to continue the drug testing for over two years.
Hair follicle testing in custody cases
The court could use hair follicle testing in custody cases until they are satisfied that there is no risk to the children of parental drug use.
Remember, a positive drug test, whether it be hair follicle or urinalysis, does not result in an automatic suspension of your child custody.
The best interests of the children in the Family Law Act 1975 comprises two primary considerations:
- The benefit to the child of having a meaningful relationship with both of the child’s parents
- The need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence.
The second point is given greater weight than the first as the need to protect children from harm is the most important consideration.
Therefore, if the court feels that parental drug use would put the children at risk should they be placed in that parent’s care they will make an order that limits contact between the parent and their children.
What happens if I test positive to drugs in a family court matter?
When a person is dependent on drugs their parenting capacity is greatly inhibited.
Alcoholism and addiction to illicit substances can result in a greater probability of the person causing physical harm to children in their care.
Furthermore, a dependence on drugs often results in a distinct lack of emotional availability for the children, and this can be equally damaging in a child’s life and development.
However, the court does acknowledge the difference between recreational drug use and drug use due to a dependence on them.
Parenting matters are decided on a case-by-case basis, and this is no different for matters involving drugs.
The court will determine, based on the individual circumstances, whether they feel a parent’s recreational drug use poses a risk to the child.
Types Of Drug Tests In Family Law
It is up to the court to decide how the drug testing is carried out, and it often depends on which drug or drugs they are testing for.
Urinalysis, or urine testing, is the type of test the court is most likely to order. It is very useful to test for drug use in the short time period before the sample is taken.
Blood tests are another type of drug test, along with hair follicle tests.
A hair follicle test can reveal whether the person has used certain drugs in the past 90 days.
How Might The Court Make Orders For Drug Testing?
Judd & Judd 
The Family Court of Australia at Sydney heard the final proceedings of a parenting dispute.
The parties, known as Mr and Ms Judd, were married from 2012 until 2016, and had one child, a girl born in 2015.
Both the mother and the father have a history of illicit substance use and the court saw a risk that they would begin using illicit substances again.
The court determined that it was in the best interests of the child to live with the mother and spend time with the father in increasing periods in the next four years.
The mother and father were given equal parental responsibility in all areas except education, where Ms Judd will have sole parental responsibility, although she must first consult with the father in an effort to reach an agreement.
The mother and father must also comply with strict substance restrictions and drug testing orders.
Neither Mr Judd nor Ms Judd is permitted to consume any form of illicit substance or any prescription medicine not prescribed to them by a doctor at any time when the child is in their care or in the 72 hours before the child is transferred into their care.
Both parties have restrictions placed on their alcohol consumption.
They must not exceed a blood alcohol concentration of 0.05 at any time when the child is in their care and in the 24 hours before the child is in their care.
For a period of 12 months, the Independent Children’s Lawyer (ICL) may make requests for random drug testing.
The ICL may request hair follicle testing up to once every two months.
Because of these orders to provide hair strands for testing, neither the mother nor the father is permitted to cut their hair shorter than four centimetres in length.
However, the mother is permitted to have a half head of foils every eight weeks.
Up to once per month, the ICL may request a urinalysis, and the mother and father must comply within 24 hours of the request being made.
The hair follicle testing and urinalysis will test for evidence of the use of:
- Amphetamine, methamphetamine, MOMA, ecstasy
The ICL may also request a blood test up to once per month to test for alcohol consumption by measuring Carbohydrate Deficient Transferrin levels.
The mother and father are responsible for paying their own drug testing costs.
They are required to provide copies of drug testing results to the Independent Children’s Lawyer, the solicitor for the mother and the solicitor for the father.
Vokic & Vlass  FamCA 56 (15 February 2012)
In another case from Sydney in 2012, the judge made orders to restrict the mother’s time with the children if she returned positive drug test results.
Ms Vlass and Mr Vokic married in 2000 and separated in 2009. They have twin children, born in 2003.
The wife has a history of drug use, particularly cocaine.
In 2010 and 2011 the court ordered the mother undertake hair follicle tests and she returned positive results for cocaine and methamphetamine.
The parenting orders were made on the condition that Ms Vlass’s undertake drug testing and that her results are consistently negative.
The mother and father were given equal shared parental responsibility of their two children.
The judge made orders that the children live with the father and spend time with the mother, beginning at every Sunday and one school afternoon per week with the mother and gradually increasing throughout the year.
The mother was ordered to undertake supervised urinalysis every Monday for a period of 12 months and provide the results to the father within seven days.
Mr Vokic was given the ability to make requests for random urinalysis up to once a month for 12 months, and the mother must comply within 48 hours of the request being made.
After this 12-month period, the father may request random urinalysis no more than once every three months for a period of two years, and the mother must similarly comply within 48 hours of receiving the request.
The mother was also required to undertake hair follicle testing once every six months in 2012 and 2013.
She was not permitted to consume alcohol while the children were in her care.
Both the mother and the father are restrained from consuming illegal substances at all times.
If Ms Vlass failed to comply with the orders for drug testing, or if she returned a positive result for illicit drugs, her time spent with the children would be reduced to two hours per fortnight under supervision at a contact centre.
The mother was also required to attend drug and alcohol counselling.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.