Parenting Proceedings and Drug Use

Introduction

Drug use by a parent is a matter that is considered by the family courts when determining what living arrangements are in the best interests of children.

A parent’s struggle with drug use can have a hugely detrimental impact on their relationship with their children. There are varying risks posed by parents under the influence of drugs whilst children are in their care. Parental capacity can be severely impaired by drug use. Lack of sufficient attention or supervision may arise when a parent is a regular user of drugs. At the other end of the spectrum, persons using crystal methamphetamine or ‘Ice’ often exhibit violent tendencies, which can be a real risk to a child’s physical safety.

Under the Federal Circuit Court Rules 2001, parties are required to disclose any allegations of drug use prior to filing an application in the Federal Circuit Court.

Relevant Case Law

In the matter of Lemus & Lemus [2019] in the Federal Circuit Court of Australia, orders had been made in October 2018 for children to live with the Mother and to spend time with the Father. After evidence emerged of drug use by the Mother where she had been taking cocaine, the Father brought an Application seeking further interim orders for the children not live with him.

The Mother deposed that regards drug use, the last time that she had used cocaine was on 15 and 16 February 2019 when the children were not in her care and that she had also used cocaine in September and December 2018 when the children were not present. In February 2019, each of the Mother and the Father had undergone drug use testing which returned a negative result for the Father but had shown positive for the mother for cocaine use. The drug use by the Mother was not in dispute.

Court Analysis

The Court considered the terms of section 60CC of the Family Law Act 1975 (Cth)
and the two primary considerations which are:
a) The benefit to the children of having a meaningful relationship with both of their parents; and
b) The need to protect the children from physical or psychological harm from being subject to or exposed to abuse, neglect or family violence.

The second point is given greater weight than the first as the need to protect children from harm is the most important consideration. Therefore, if the court feels that parental drug use would put the children at risk should they be placed in that parent’s care they will make an order that limits contact between the parent and their children.

The Court said that it was the need to protect the children which was in issue following the mother’s relapse into drug use and the possible effect that can have on the children if it continues, and what can be done to address the risk of drug use.

Where there is a risk, the Court must decide if the risk amounts to an unacceptable risk. If the risk is unacceptable, the Court looks to whether the risk can be addressed by orders or if it is necessary that there is no contact between the parent who presents the
risk and the children.

Conclusion

In this case, the Court held that the unacceptable risk of drug use could be handled so that on an interim basis, the children would continue to live with the Mother if the
Mother stopped drug use and to spend time with the Father.

However, the Court said that on the evidence there was a significant risk that the Mother will relapse into drug use. The Mother was continuing on her evidence to see her psychologist and psychiatrist.  The Court warned of a complete change of the living arrangements if the Mother is shown to relapse into drug use on further random testing.

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