Australia: Cannabis and family law

Last Updated: 15 July 2016
Article by Sherlene Heng

Cannabis. Marijuana. Pot, Dope. Mull. Yarndi. These are all names for the most commonly used illegal drug in Australia1. Pursuant to the Department of Health's general factsheets on cannabis2, some of the physical effects of using marijuana may include drowsiness, temporary loss of memory, risk taking behaviour and an impaired capacity as a parent/primary carer of children. Psychological effects may include confusion, changes in perception, hallucinations, anxiety and panic, concentration problems, and memory problems.

While drug use is not specifically referred to in the Family Law Act 1975, the Federal Circuit Court requires parties to disclose allegations of drug and alcohol abuse in the Notice of Risk document which is mandatory for both parties to file at the start of Court proceedings. It is not uncommon where one party is alleging drug use by another party that urinalysis or blood tests are then ordered by the Court.

Addiction/Dependency to Cannabis

In the case Hogan & Hogan [2008]3 the Full Court commented that drug use was relevant to the determination of what was in the best interests of the child. The Court stated:

"In a case where it is alleged that one or both parents, or any person in the care of a child, are addicted to drugs, this is highly relevant because, potentially:

  1. it might undermine or even destroy the meaningful relationship that exists between child and parent and/or;
  2. it creates a need to protect the child from physical or psychological harm from being subjected to, abuse, neglect or family violence attributable to the drugs; and/or
  3. it adversely impacts on the nature of the relationship of the child with the drug dependent person and/or
  4. it impairs the capacity of that parent or person to provide for the needs of the child; and/or
  5. it demonstrated a poor attitude to the child and to the responsibilities of parenthood; and/or
  6. it might lead to situations of family violence.

The Full Court went on to comment (noting in the judgment that this was neither evidence nor material in respect of which judicial notice was taken)

"Parenting and drug addiction are a potentially dangerous mix for the child. Drug dependence creates a pre-occupation that is inconsistent with responsible parenthood. The compulsion for drugs is not inconsistent with parental love, but is often inconsistent with the ability to meet the needs of children. Choices are often made that compromise the ability of parents to protect their children. Funding and maintaining a drug habit creates instability in family life. Children can often become secondary priorities, and thus vulnerable to harm. Routines are often disrupted. Sometimes drug dependency leads to exposure to criminal behaviour and the criminal law. Even if a parent is physically present for a child, drug dependence often leads to emotional unavailability for children, which is sometimes the most damaging impact. In short, parental capacity is grossly compromised."

In the case Hogan & Hogan [2008]4, the husband gave evidence that suggested he consumed 600 joints a year. He stated that the children had never seen him smoke cannabis and that there was no evidence of actual abuse or neglect. The husband had held down professional full time employment for an extended period.

The family consultant had advised that if the Court found that the husband was addicted, there would be concerns about the husband's ability to interact and to be available for the children and would diminish his parenting capacity. Moreover, the family consultant stated, if the husband's consumption of cannabis was constant and obvious there was a chance he would be a poor role model for the children. The family consultant differentiated between an addiction and a controlled usage.

The Full Court requested that Counsel provide it with evidence about the impact on parenting capacity of an addiction to cannabis. An expert witness advised that there was no specific literature on the issue but that

"Occasional use of cannabis was of little concern, but dependent use is different."

The expert witness opined that occasional use of cannabis is consistent with being able to parent but that there was a need to assess each individual.

The Full Court found that the husband was addicted to cannabis and had a reduced capacity to meet the children's needs and protect them from the risk of abuse and neglect. It adopted the wife's proposal of allowing 4 unsupervised and continuous nights per fortnight but made no orders for testing. Whether the Court would have ordered less time had the mother not proposed 4 nights per fortnight can only be a matter of conjecture. Other similar matters suggest it would.

  • In the case of Bartin & Baddle5, the father had started smoking marijuana when he was 15 and had done so for 17 years. He had been smoking 7 grams per week but had more recently halved his consumption. At the time of the trial he had done one clean drug test and advised the Court he was no longer consuming marijuana. The Court made orders that the child spend time with the father on 2 unsupervised and continuous nights per fortnight and that he undertake random urinalysis testing for 12 months.
  • In the case of Langs & Ashley6, the mother provided conflicting information about her cannabis use but at some point had been using 6 to 7 joints per day. The Court made orders that while the child spend time with the mother on 5 unsupervised and continuous nights per fortnight but that should she return a positive urinalysis test, the time would be suspended until she had provided 2 further consecutive tests taken 7 days apart. There was no end date placed on this testing.

Recreational/Occasional Use

Even when the Court considers that cannabis use has been recreational, it has been reluctant to accept a parent's continuing use. The writer has been unable to find a case in which a parent has informed the Family Law Courts that he/she intends to continue occasional cannabis consumption and been allowed to do so, although in the Supreme Court case of Re Georgia and Luke7 (a matter between the Department of Community Services and the parents as opposed to between the parents themselves) comments were made in relation to parental responsibility in light of recreational use.

In that case, an officer of the Department of Community Services removed the children from their home. The parents sought an order that the children be returned to their care. Palmer J found that there was no evidence that the parents had abused the children physically or emotionally. There was no evidence that the children were neglected or failed to thrived. There was no evidence of alcohol abuse, psychiatric or psychological illness, or disability. Palmer J was satisfied that the parents used cannabis recreationally and were not dependent. This was confirmed by a clinician.

Counsel for DOCS agreed that the use of cannabis should not affect DOCS' assessment of parental responsibility unless it actually impaired the parent's ability to care properly for a child. Palmer J invited DOCS to make it public if it had the view that any cannabis use in itself renders a parent unfit to care for a child. As there was no evidence to that effect, the children were returned to their parents' care.

In the case of Jordan & Callaghan, the father stated that he no longer used cannabis. Terry FM considered that the father used cannabis much more frequently than admitted but that there was no evidence which would allow him to make findings about the effect of his use on his ability to care for his child. Terry FM gave the father limited unsupervised weekend time and no holiday time, restraining him from using illegal drugs 12 hours prior to and while the child was in his care but considered that there was no point making orders about drug screening tests.

In contrast, in the case of Cannon8, the Court accepted that the mother used marijuana weekly on a recreational basis. The mother assured the Court that she genuinely wished to stop using marijuana and was undertaking counselling through the Drug and Alcohol program. The Court ordered that the child spend 9 nights per fortnight with the mother but that for the next 18 months the mother had to:

  • undergo urinalysis testing once per month;
  • undergo random urinalysis testing no more than once every 2 months;
  • undergo 2 hair follicle tests 9 months apart

and should the mother return 2 positive drug tests within 3 months, on the first occasion the 18 month period would recommence and on the second occasion the father would have sole parental responsibility, the child would live with the father, and only spend supervised time with the mother until she had 12 months of clean drug tests.

It is of course reasonable that dependence and addiction is not accepted to be in the best interests of a child and that a marijuana dependent/addicted parent should be subject to testing and assurances that he or she will no longer consume same.

However, there appears to be a conflicting approach in relation to recreational or occasional use. While such use is considered by some experts to be consistent with appropriate parenting, notwithstanding that it is presently illegal to use marijuana, the Court appears to generally require testing and assurances that the parent will no longer consume same.

In 2015 the Federal Government announced it intended to amend legislation to allow cannabis to be grown for medicine or science although it was quick to confirm it had no plans to decriminalise marijuana for recreational use9. It is expected that if the amendments pass, in 2017, medicinal cannabis will be able to be cultivated at a federal level (although it is still up to each individual state to in turn legislate to decriminalise possession and personal cultivation for compassionate medical purposes).

When the decriminalisation of medicinal cannabis occurs, will this impact on parenting applications in the Family Law Courts? The physical and psychological effects set out in the NSW Department of Health's factsheet will not change but will the Courts be less likely to require testing and assurances from parents using marijuana for recreational and / or medical purposes?

Some of these issues are already rearing their heads in the United States where states have decriminalised medical marijuana (and some have decriminalised recreational marijuana). There have been cases where parents who use medical marijuana have had their children removed from their care. While the laws in relation to parenting are different in the United States, it remains to be seen just how the Courts will view this in Australia.

If you are consuming drugs or you believe the mother/father of your child is consuming drugs, you should obtain advice on how this will impact on your parenting arrangements. One of our lawyers at Swaab Attorneys will be able to assist.

Footnotes

1 NSW Department of Health website

2 Factsheet from the NSW Department of Health http://www.health.nsw.gov.au/mhdao/Factsheets/Factsheets/cannabis.pdf

3 Hogan & Hogan [2008] FMCAfam 1219 (14 November 2008)

4 Hogan & Hogan [2008] FMCAfam 1219 (14 November 2008)

5 Bartin & Baddle [2008] FamCA 1089 (15 December 2008)

6 Langs & Ashley [2014] FCCA 2558 (13 November 2014)

7 Re Georgia and Luke (No 2) [2008] NSWSC 1387 (19 December 2008)

8 Cannon & Cannon [2010] FMCAfam 681 (16 July 2010)

9 Media Release from The Hon Sussan Ley MP dated 17 October 2015 on https://www.health.gov.au/internet/ministers/publishing.nsf/Content/546FB9EF48A2D570CA257EE1000B98F2/$File/SL-123.pdf as well as Media Release from the Hon Sussan Ley MP dated 3 December 2015 http://sussanley.com/medicinal-cannabis-to-be-cultivated-through-single-national-scheme/

For further information, please contact:

Sherlene Heng, Senior Associate
Phone: +61 2 9233 5544
Email: SXH@SWAAB.COM.AU

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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