Drug Testing in Family Law

by Peter Magee on June 24, 2016

Peter Magee

Allegations of illicit substance use or prescription medication abuse are common in family law disputes with respect to children. Clients will often seek advice from their lawyer with respect to concerns that they have about another party’s drug use, or alternatively, when they are the target of allegations about drug use.

In any event, it is often the case that during family law disputes over children, one or both of the parties may be ordered by the Court to undergo a random drug test.

Why does a Court make this order?

When determining disputes about children, the Court’s most paramount consideration is what is in the best interests of the children, and any decision with respect to arrangements for the children will be based on ensuring the children are protected and safe.

An order for a drug test may be made if there is reason to believe that one or both parties seeking that the children live with them or spend time with them, is abusing drugs, including illicit drugs. The Court has obligations to minimise any risk to children, and this includes risk as a result of drug abuse by a parent.

How does this impact on you?

If you are a parent with concerns for your child’s safety whilst in the care of the other parent you can make an application to the Court, and seek an order that the other parent undergo drug screening. The results of such a drug screening can be used to aid the Court in determining how much time and in what circumstances the child spends with the other parent.

Alternatively, if you have been ordered to undertake drug testing, you are required to comply with this order. If you fail to comply with such an order, the Court may infer that you would have tested positive for the substance and assume that the other party’s allegations about the drug use are true.

But the allegations are not true; do I still have to undergo the testing?

If one party makes allegations that the other party is using drugs in a manner that may put the children at risk of harm, the Court will not take these allegations lightly. Even if you deny using illicit substances, or abusing prescription medication, it is still open to the Court to make an order for drug testing, in order to be satisfied that the allegations are not true.

The Court has only the affidavit material before them on which to rely. The Court does not know you personally, or your personal circumstances and an order for drug testing should not be construed as a personal affront. It is the most effective way the Court can gather reliable evidence as to whether the allegations made against you are true.

If you assert that the allegations are not true, undertaking the random drug testing is an effective way to prove that the other party’s allegations are baseless.

How do the drug testing orders work?

Drug testing in parenting matters are carried out in a supervised environment.

Generally, the testing involves the collection of a urine sample, however other testing, such as hair follicle testing is possible.

Usually, the Court will order that the party undertakes one or more tests during the period between the last court date, and the next court date. The other party or the Independent Children’s Lawyer will be permitted under the order to request a drug test during the period of adjournment. Often the Court will limit the number of requests by stating that it may be no more than twice per month.

The requesting party will send a written request and the party required to undergo the test must then do so, and usually this is required to be completed within twenty-four hours. The results of the test will usually be provided to all parties to the proceedings, and to the Court.

How long can Court Ordered random drug testing go on for?

The parties can be made to participate in random drug testing for as long as the Court orders.

Whether this is 3 months, one year or two years is within the Court’s discretion. The Court must be satisfied that there is no risk of harm to the children by way of parental drug use before they cease random drug testing.

Costs associated with urine sample drug testing

The current cost for of a urine drug test is approximately $130-$160, and it is generally accepted that each party meets the costs of their own individual drug testing.

Each State has varying costs with respect to Court ordered drug testing, and they also depend on which pathology service is used.

If you have concerns regarding drug testing or drug use in your family law matter, please contact our Family Law team here at Armstrong Legal. Together we can discuss your options and the best course of action for your matter.

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