What do the cases say?
There have been various cases where the Court considered how and whether a parent's use of prescribed medicinal cannabis poses risk issues for children and how the risk is to be managed.
2022 case – prescribed medicinal cannabis use by a father
In a 2022 decision involving two young children of primary school age, the Court was required to assess the parental capacity of, and any risk issues posed by, a father who was prescribed medicinal cannabis. The father admitted to using marijuana daily prior to the parents' separation and that the use caused him to become erratic and paranoid.
During the proceedings, the father provided three negative drug test results. However, he had not complied with orders that required the tests to be supervised. The Court considered that the father's explanation of how he obtained a prescription for medicinal cannabis a few weeks before the hearing was 'implausible', as the father suggested he received the prescription from his local GP rather than a mental health treatment plan. The Court noted that the father had been 'grossly irresponsible' in addressing his substance abuse and mental health challenges, and had behaved very poorly when the mother gave evidence during the proceedings.
At the outset, the Court outlined that a parent's mental health challenges do not immediately disqualify them from fulfilling their parental responsibility or support a finding that they lack parental capacity. However, the Court found in this case that the children were at risk of exposure to emotional and psychological harm if the father did not address his mental health.
At the time of the hearing, there was a medical report available that included a recommendation that the father not consume illicit drugs or medicinal cannabis within 24 hours of caring for the children.
The Court ultimately ordered the father attend a clinical psychologist and follow all lawful recommendations made by them, and then obtain a report from the treating psychologist within 12 months that addressed the father's:
- attendance, compliance, and engagement with the practitioner's direction for attendance and treatment
- suffering from any mental health illness under a regime of treatment
- mental health, and any mental health condition that impacted his parenting capacity
- prescribed medications for the treatment of his mental health.
The Court also ordered the father undertake a hair follicle test for any illicit substances and attend a drug and alcohol counsellor. If there was a positive drug test result, the father was further ordered to obtain a report from a qualified expert (such as a biochemist or a taxologist) to address various further factors about his use and its impact on his daily function and ability to operate a motor vehicle.
Upon the father complying with these conditions, the Court ordered that he would be permitted to spend supervised time with the children each fortnight.
2022 case – prescribed medicinal cannabis use by the mother and alcohol use by father
In another 2022 case involving a three year-old child who resided with the mother and only had visits with the father, the mother was prescribed and used medicinal cannabis regularly (including while she had been pregnant). It was noted that the father drank alcohol to excess and also reported illicit drug use. He would take alcohol to birthing classes at the hospital and continued to drink after the child was born. The Court considered a report from a psychiatrist in relation to both parents.
The report recommended the father manage his alcohol and never
use illicit or non prescribed drugs again and also attend a stress
management plan.
In relation to the mother, the psychiatrist noted that both her
recurrent use of cannabis and the symptoms of her mental health
difficulties were impacting upon her mental state and her cannabis
use was 'particularly concerning'.
The Independent Children's Lawyer (who is a third party separately appointed to represent the children's interests) proposed that the mother be restrained from using the medicinal cannabis within 24 hours before and during spending time with the children.
The Court determined those restraints were not necessary because they were simply requiring the parents to comply with the law and that it was not appropriate for the Court to depart from the terms of the mother's prescription for medicinal cannabis.
The Court ultimately ordered that the child live with the father and spend increasing time with the mother, commencing with supervised time and then four nights per fortnight plus school holiday time.
2024 case – authority to be given to treating doctors
In a 2024 case, the Court made orders that went as far as requiring the father, who had been prescribed medicinal cannabis, to authorise his treating doctors to contact the mother if the doctor had any concern about the father's 'ongoing parental capacity that may place the child at risk of physical, emotional or psychological harm'.
The Court ultimately ordered that the father be restrained from using alcohol or illegal substances during the 48-hour period prior to his spending time with the children, and any prescribed medication that was not taken in accordance with the prescription.
The Court also ordered that the child live with the mother and spend limited overnight time with the father, which would increase to two nights per fortnight within five months plus time during the school holidays.
What does this mean for parents?
The recent case law demonstrates that parents with prescriptions for medicinal cannabis should act with extreme caution when addressing any risks issues the prescription may pose for their children and ideally be supported by medical evidence from their treating practitioners.
It may be that the recent 2024 decision indicates the Court will be more inclined to restrict a parent's use of a substance even if it is prescribed, as opposed to the position adopted in earlier case law.
Parents should also not assume that their private discussions with their doctor will remain confidential, as it is possible those records could be subpoenaed or that their doctor will be ordered to provide information to the other parent.
For parents who may be worried about their former spouse's cannabis use, the existing case law also makes it plain that the fact a parent uses cannabis (prescribed or otherwise), of itself does not mean they will not be permitted to spend time with their children. It may however mean that they are ordered less time with the children.
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.
