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How the family courts view marijuana use in parenting disputes

By August 2, 2016No Comments

By Gianna Huesch

A recent article published at Mondaq looked at the way our family courts have been tending to treat cases involving a parent who is a user of marijuana, whether as an addict or a recreational user.

As always, the family courts will strive to find a solution that is in the best interests of the child. This includes establishing whether or not a parent’s use of alcohol or other drugs, such as cannabis, impairs their capacity to parent appropriately or places the child at risk of harm.

Marijuana is one of the most commonly used illegal drugs in Australia and while drug use is not specifically mentioned in the Family Law Act 1975, allegations of drug and alcohol abuse must be disclosed in the Notice of Risk document that is filed by both parties prior to commencing court proceedings in the Federal Circuit Court.  So how do such allegations impact on parenting matters?

Drug use becomes relevant when it undermines or destroys the meaningful relationship between a parent and child, or creates the need to protect a child from physical or psychological harm (abuse, neglect, family violence, etc). The usage can impair a parent’s capacity to provide for the needs of their child, affect their judgment and attitude to the responsibilities of parenting, create a pre-occupation inconsistent with responsible parenting, lead to bad choices, create financial instability in the family and cause exposure to criminal behaviour. The parent can also be emotionally unavailable, which can have long-lasting psychological effects on a child.

If one party is alleging drug use by the other parent, drug testing by way of urinalysis, hair follicle tests or blood tests can be ordered by a court with outcomes linked to loss of custody or limited time with children. Such drug testing can be for a fixed time period but can also be ordered to continue with no fixed end date. The courts can also limit a parent’s time with their children, or require it to be supervised until, for example, the parent can show evidence that their capacity to parent is no longer affected.

There is no hard and fast rule, and matters are decided on a case-by-case basis, determined by individual situations and the evidence presented as to the parent’s ability to effectively parent.  In the case law reviewed, it is noted that expert witnesses have advised courts that there is no specific literature on the issue of the impact of cannabis addiction on parenting capacity.  In one case, a judge “invited DOCS to make it public if it had the view that any cannabis use in itself renders a parent unfit to care for a child. …There was no evidence to that effect”.  In another case, a judge noted there was “no evidence which would allow him to make findings about the effect of (the father’s) use (of cannabis) on his ability to care for his child”. Still, that judge decided to only allow the father limited unsupervised time with his child.

As far as a distinction between addiction and recreational use, the story notes that “even when the Court considers that cannabis use has been recreational, it has been reluctant to accept a parent’s continuing use”, and stringent testing requirements have been imposed along with assurances that the parent will not continue to use the drug.

(Read the full story:

Are you in need of legal advice in relation to a parenting dispute or other family law matter, particularly one in which there are allegations of drug use by a parent? Please contact Cristina Huesch, Angela Li or Sharla Stevens here at Alliance Family Law on (02) 6223 2400, for a no-obligation, cost-free first conference.


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