Matters involving children are particularly sensitive and often contentious.
The family Courts, in these matters, prioritise the safety of the child from physical or psychological
harm, which may come about due to being subjected or exposed to abuse, neglect or
family violence. In deciding whether to make a particular parenting order in relation to a
child, a court must regard the best interests of the child as the paramount consideration.
This is the Family Law Act 1975 s.60CA ‘best interest’ consideration.
It is because of this ‘best interest’ principle that Courts have the power to order drug
tests for parents.
If an allegation arises against a parent regarding abuse or risk to a child (including
exposure to drugs) under s.4(1) of the Family Law Act 1975 the party making the
allegation must submit a Notice of Risk to the Court before the hearing, outlining the risk
to the child. The Court has the discretion to make an Order for drug testing to obtain
evidence of drug use. Any refusal to comply with an order to be tested will lead to the
immediate presumption of a failed/positive test.
Court-ordered drug tests can be random and spontaneous, or routine depending on what
the Court sees fit. In a recent Family Court matter, Judd & Judd (2017) FamCA 785,
parents who were known to have a history of illicit substance use were required to
comply with a strict drug-testing regime to retain parental responsibility for their child.
The Court may appoint an independent children’s lawyer (ICL) to be responsible for
reporting to the Court on results of the drug tests. In the above case, an ICL was
appointed to request random drug tests of the parents whenever they thought
appropriate. The tests can take form as hair follicle, urine analysis or blood test and aim
to provide substantiating evidence to the Court of risk to the child.