Why Family Courts Have Plenty to Say About Drug Use

Why Family Courts Have Plenty to Say About Drug Use

It might surprise some of you reading this to know too many of the people who go through drug rehab, including when that takes place in a residential facility, are much-loved family members, many of whom are fathers or mothers of young children. This points us to the fact that drug addiction makes no distinction of who is afflicts, so it can impact anyone regardless of age, gender, income bracket, or the family they belong to.

Whilst drug rehab should be seen as a positive step in someone moving towards freeing themselves of drug addiction, it can also form part of a situation directed by decisions taken under family law. Bear in mind that many cases before the Family Court are either complicated by or initiated due to someone being addicted to drugs.

Drug laws, which come under the umbrella of criminal law and family law, are two distinct legal areas, so lawyers specialise in each. Nevertheless, there will be instances where their paths cross, especially when children in a family are affected. Therefore, we will take a brief look at how the Family Court will make rulings when drug use and drug addiction are a factor.

Family Law Does Not Mention Drug Use

It may shock you that, as far as we can tell, drug use is not explicitly mentioned in any family laws, including the Family Law Act of 1975. However, that does not mean that its guidelines and regulations do not apply when drug use is a factor in a family law case.

This is especially so when children are involved, and this is where one of the most important principles of family law comes to the fore, and that is the ‘best interests of the children’. In every case that comes before the Family Court in any state in Australia, the court’s decision will always have the children’s best interests as its guiding consideration.

This means when divorcing parents ask the Family Court to decide who their children will live with and on visitation rights, it is not the rights of the parents that take precedence. It is those of their children. As such, if one or both of those parents is a drug users, this will undoubtedly be considered when rulings are made in court.

How The Family Court Establishes Drug Use

It is not enough for one parent of children to point the finger at the other and say, “They use drugs”. To the court, that carries no more weight than a child calling another a name. However, if such an accusation is made, it will wish to see evidence that it is accurate. It can facilitate this by ordering the parent accused of drug use to take a drug test, especially if that parent denies the accusation. These tests can be done in a variety of ways which are:

  • Hair Follicle Testing
  • Blood Test
  • Urine Test
  • Saliva Or Oral Swab
  • Breath Test

In most cases, the Family Court will request either hair follicle or urine testing because these can detect a broader range of drugs than the others.

What The Family Can Order If A Drug Test Is Positive

If a drug test of a parent comes back positive, there are various ways the Family Court may rule because there is no single action that covers every set of circumstances. An example of a ruling is only allowing supervised visitation at a designated location. They could also add to the supervised visitation an order that the parent undergoes drug therapy treatment, including drug rehab before they would be allowed unsupervised visitation.

In addition, ongoing drug testing could be made mandatory, and any subsequent positive test result could suspend all visitation. Note no visitation would be ordered in cases where there was a risk to the children from a parent with violent tendencies when under the influence of drugs.