When it comes to handing down Parenting Orders, the Family Court's first and foremost concern is to ensure that the best interests of the child are followed. The primary factors taken into consideration by the court when determining orders in the child's best interests are:
- The benefit to the child of having a meaningful relationship with both parents; and
- The need to protect the child from physical or psychological harm, which may come about due to being subjected or exposed to abuse, neglect or family violence.
Undeniably, exposure to drug and
alcohol use could be classified as harmful to children, and
pursuant to Hogan &
Hogan [2008] FamCA 41 these types of concerns are deemed
extremely relevant within the context of the Family Court
implementing Parenting Orders. This case of Hogan & Hogan
provided that whilst drug use does not necessarily diminish a
parent's love for a child, it does diminish a parent's
ability to care for them.
If either party does have concerns
pertaining to the welfare of the child, when proceedings are
commenced in either the Family Court or Federal Circuit Court, the
party must notify the court of such alleged risk. It is quite
common in cases that involve allegations of risk, including
allegations of alcohol and drug misuse and abuse, for an
Independent Children's Lawyer (ICL) to be appointed.
The ICL will usually obtain orders that require either one or both
of the parties to undertake drug and/or alcohol testing. If
an ICL is not appointed, either party may request that the court
make an order for alcohol and/or drug testing.
The process usually involves either the
ICL or the requesting party (or their solicitor) writing to the
other party to request that they undertake a drug and/or alcohol
test within 24 hours, and thereafter provide the results when
available. The process of
random drug testing ensures that the party has no knowledge of
when they will be required to undergo the testing, which in turn
avoids them having the ability to prepare for such a request in an
effort to manipulate the results.
Drug and alcohol testing may continue for as long as the court
considers it necessary in order to determine the safety and best
interests of the child. Generally, the costs of alcohol
and/or drug testing are required to be paid by the party being
tested, although this can vary depending on the individual
circumstances of the case.
Which forms of tests are most common?
The most common type of drug testing is urinalysis testing.
Urinalysis testing is widely used due to its quick, cost
effective and less invasive (at least as opposed to some other
tests) nature. Another common type of drug and alcohol
testing is hair follicle testing - although this can be a costly
exercise, and the court will often exercise caution in ordering
hair follicle testing.
Within the context of testing for alcohol use, the most commonly
utilised tests are ordinary blood tests and comparative liver
function tests. All tests have various pros and cons, in that
their effectiveness varies between different types of substances.
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.