Drug Testing in Family Court Proceedings

In ensuring that children are not exposed to risk of harm the Family Court will often make orders that one or both parents (or any other people involved in the proceedings) undertake random drug testing. It is at the discretion of the Family Court to make that order. Often, these tests are ordered even when the alleged drug user is disputing the allegations.

When can drug testing be ordered?

The paramount consideration in parenting matters is a determination of what is in the child’s best interests. In determining what is in a child’s best interest the Family Court is to have primary regard to: 

“The need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.”

The Family Court has held in the name of Hogan & Hogan [2008] that a parent’s potential drug use or dependency is a highly relevant matter for consideration in determining a child’s best interest and that whilst drug use does not lessen a parent’s love for a child it does lessen a parent’s ability to care for a child.

If one party is concerned about drug use or risk to a child a Form 4 Notice of Child Abuse or Family Violence (or Risk) is filed at the Family Court with their initiating application. This Form 4 is also served on the Department of Communities Child Protection and Family Support and a report produced as to the Department’s involvement with the family.

What is the process of drug testing in the Family Court in Western Australia?

In circumstances where an Independent Children’s Lawyer (ICL) has been appointed it is generally the responsibility of the ICL to request drug testing at random. Usually, this request is made in writing and requires the party the request is made of to undergo the test within 24 hours of receiving the request and to provide a copy of the test results to all parties.

If an ICL has not been appointed the parties can request the tests of each other. If the parties are requesting tests directly from each other, the Family Court will often place restrictions on the number of tests that can be requested.

If the party who has been requested to take a test refuses, the Family Court can draw an inference of a positive test. If that parent is unable to take a test for legitimate reasons they will need to provide documentary evidence of those reasons.

The general position is that the party undergoing the testing meets the cost however this is not always the case. 

Undertaking Drug Testing for the Family Court – urine, hair and blood

Typically the most common type of drug testing ordered by the Family Court is urinalysis. This testing is not invasive, is quick and at a low cost. In recent years however there has been a move towards hair follicle testing. Although a more expensive option, hair follicle testing provides the Family Court with evidence about a party’s drug use over a period of time rather than simply indicating whether a party has recently used drugs as provided by urinalysis testing.

In making orders for hair follicle testing the Family Court will also often order that the parent undergoing the test is prevented from colouring or cutting their hair for the duration of time the tests are to be carried out for. In the recent case of Judd & Judd [2017]  the parents were prevented from cutting their hair shorter than 4cm in length however the Mother was permitted to have her hair dyed with half head of foils no more than once.

In circumstances where alcohol abuse is a concern, the Family Court may order parties undertake blood testing or comparative liver function testing.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.