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Drugs And Family Law

Drugs And Family Law

Drug usage can be a contributing factor in familial breakdown and, when a matter progresses through the family law process, is subject to close scrutiny by the Court. Although the Family Law Act does not specifically address drug usage, numerous sections of the Act respond when drug use is an issue.

In the case of Hogan & Hogan, the fact that the father had an extensive history of marijuana use was relevant. The father had smoked approximately 600 joints a year for 20 years. The Federal Magistrate accepted that the father was a respected educational professional who had a positive relationship with his children and that it was in the best interests of the children for him to be involved in their lives.

And this is the crux of the Family Law Act - the ‘best interests of the child’. The Family Law Act states that the best interests of a child is the paramount consideration. In Hogan & Hogan, the Federal Magistrate pointed to several sections in the Act which attempt to analyse what is in the best interests of a child and how the Act deals with drug addiction;

-          Addiction might undermine or destroy a meaningful relationship between a child and parent (section 60CC(2)(a));

-          Addiction creates a need to protect the child from physical or psychological harm from being subjected to abuse, neglect, or family violence because of the drugs (section 60CC(2)(b));

-          Addiction changes the nature of the relationship of the child with the drug dependent person (section 60CC(3)(b);

-          Addiction impairs the capacity of a parent to provide for the emotional or intellectual needs of their child (section 60CC(3)(f));

-          Drug usage demonstrates a poor attitude to the child and the responsibilities of parenthood (section 60CC(3)(i)); and

-          Addiction may lead to situations of family violence (section 60CC(3)(J)).

In this case, the court appointed family consultant drew a distinction between ‘controlled’ drug usage and usage which permeates all aspects of a user’s life. In other words, recreational use as opposed to addiction. 

The father in Hogan & Hogan was not successful in obtaining equal time with his children; rather, an order was made that each fortnight the children would spend time with the father for four consecutive nights. The Federal Magistrate was not convinced that the father, given his long term addiction to marijuana, could abstain for a period longer than four consecutive nights. The Federal Magistrate said that the father may have further time with his children in the future if he was able to overcome his addiction.

Bartin & Baddle is another case of family breakdown in which marijuana addiction was centrally featured. In this case, the father had smoked marijuana almost daily since the age of 15. At the time of trial, he was 32. The trial itself took place in August of 2008 and up until May of the same year the father had tested positive for marijuana use. His first ‘clean’ drug test results were achieved in July of the same year. Whereas in Hogan & Hogan there was an acknowledgement by all the parties, including the Federal Magistrate, that the father had a positive relationship with his children, in Bartin & Baddlethere was concern as to whether the children spending time with the father was in their best interests. There was evidence that he was an aggressive man whose mood and temper were exacerbated by the quantity of marijuana he was consuming. In making parenting orders, the Federal Magistrate considered section 60B of the Family Law Act. Specifically, the Federal Magistrate considered:

-          The benefit to the children of having a meaningful relationship with both parents (section 60B(1)(a)); and

-          The need to protect the children from physical or psychological harm (section 60B(1)(b)).

It was ordered by the Federal Magistrate that drug screening once per month was an appropriate way to ensure that the father was still clean. As opposed to Hogan & Hogan, where the father had demonstrated an inability to abstain from using marijuana, the father in this case had shown he was capable of abstaining for a short while and was agreeable to submitting to drug screening. Accordingly, the Federal Magistrate made orders for the children to spend a portion of their school holidays with the father.

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Disclaimer: The information contained in this blog is for informational purposes only and is not legal advice. Nothing in this blog should be deemed to create or constitute a solicitor-client relationship between any readers and Swan Family Lawyers. A solicitor-client relationship is created only when this firm agrees to represent someone and a written engagement agreement or engagement letter is signed by both the client and solicitor. In all cases, the reader should consult his or her own solicitor for advice. The information in this blog is based on Australian law.