Dope smoking Mum gets custody

by Peter Magee on July 27, 2010

Peter Magee
A recent custody dispute reported in the Brisbane Times has seen a five year old child placed in the care of his mother, even though she admitted to smoking marijuana when her son was not around. Despite the father’s concerns, Federal Magistrate Neville found it was in the best interests of the child to remain living with his mother, but made orders for her to undertake both random and regular drug screening tests. If she returned positive results, the child would automatically live with his father and have only supervised visits with his mother until she shows she can live drug-free for a year.

The full text of the judgement is quite an interesting read. Magistrate Neville explained that in this case, the child had been living primarily with his mother and the father’s main concern about the child’s welfare stemmed from his knowledge that the mother used recreational drugs. The father described his ex as a “loving mother” but said he was afraid that his son would be exposed to unsafe situations in his mother’s care and adopted what the Court called an “extremely intense” approach to parenting.

His concerns led him to take his son for drug tests without the mother’s knowledge or consent, and he was highly critical of the mother’s parenting style. In turn, the mother described the father as over-protective, and she claimed the father overmedicated the child.

The Magistrate noted that the conflict between the parents was detrimental to the child’s welfare, but hoped the parents would try to compromise for the sake of their son, and that the tension between the two would be reduced by the passage of time, their participation in parenting courses, and with the removal of the stress of litigation.

Generally speaking, if parents cannot reach a compromise about their children’s care arrangements and a Court is forced to make the decision, the decision is unlikely to satisfy everyone involved. The Court will make a decision based on a number of factors, but the primary consideration will be the best interests of the child in question. The law says that a child has a right to have a meaningful relationship with both parents, and that a child has the right to be protected from any risk of harm.

Whilst it is easy to accept that a child may be placed at risk if one parent uses drugs, it is also necessary to recognize that a child can be harmed by an over-intensive parenting regime which focuses on alienating or distancing a child from one parent because of a difference in parenting styles. As this case illustrates, a Court cannot force a parent to cooperate with the other parent, or live drug free, a Court can only make orders about what should happen to a child in various circumstances and hope that the parents’ relationship will eventually improve to the point where they can focus on how best to look after their child.

If you’re faced with a problem involving a difference in parenting styles, or if you’re worried about the possible effect of parental drug use on you child’s safety, we’d be pleased to offer you legal advice.

{ 2 comments… read them below or add one }

drew October 7, 2010 at 4:49 pm

i live in the northern territory and i dont think the laws regarding recreational drug use whilst parenting are the same as in queensland. i have a six year old daughter half time share care with her mother, and have been unsuccessful in getting any restriction on her pot smoking whilst my daughter is in her care.

my ex smokes joints every day and many times twice a day and also ciggarettes around my daughter, but according to family protection this is not reason enought for them to believe my child is any real danger.

i do acknowledge my ex is a good parent, but i am seriously worried when she is stoned and driving with our daughter in the car. also she does tend to have depression, anger outburst at our child and irrational behaviours or confused mood shifts. all of which she did not have in our first few years together when she didnt smoke pot.

it is a real concern to me and the only option i feel to take now is to get the police to go around and look for drugs. and from the amount of recreational drug use in this area, they are not really interested in the recreational user so they wont bother unless its after the dealer.

drew

Caroline Nolan July 1, 2013 at 11:18 am

As you have concerns about the safety of your daughter when spending time with your ex, we would suggest that you require that the time that your ex spends with your daughter be supervised, whether by you, by a designated person, or at a contact centre. You could agree to return to unsupervised time when your ex is drug free.

Your ex may bring an Application to the Family Law Courts (“the Court”) seeking unsupervised time. When making parenting orders, the paramount consideration for the Court is the best interests of the child. The Court assesses the best interests of the child with reference to the objects of the parenting provisions of the Family Law Act 1975, which include:

  • (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
  • (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
  • (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
  • (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

The Court is concerned to support parent-child relationships, but where a parent is dangerous or deficient, the Court will take steps to regulate time with that parent for the child’s own protection, although “only to the extent necessary to avert or manage perceived risks” (Murphy & Murphy [2007] FamCA 795).

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