The use of illicit drugs by parents is an ongoing concern in parenting matters.

The best interest of the child is of paramount consideration and consumption of illicit drugs by either parent is certainly putting the child in harm’s way, exposing them to risk and affecting their safety and wellbeing.

The court takes it very seriously when allegations are brought before it, of either parent, abusing drugs. In these circumstances, the court will consider placing precautionary safety measures to ensure that the child is not exposed to such a risk.

If there is a history of drug abuse and the alleged parent concedes consuming drugs on previous occasions, the court will often make an order that the parent who is allegedly abusing drugs to submit to ‘Hair Follicle Testing’. This testing requires a sample of hair to be taken from the persons head or body and if the test is positive, it will reveal the types of drugs the person has consumed over a period of three months.

In the recent case of Oldhof & Llewelyn (No 2) [2023] FedCFamC2F 612, Judge O’Shannessy made a very precise and clear order for ‘Hair Follicle Testing’, which ticks all the boxes for the making of such an order, as follows:

The Father make an appointment and attend for hair collection at an Australian Workplace Drug Testing Service (AWDTS) Clinic or nominee for hair ALCOHOL/ ETHANOL testing purposes. Collection is to be conducted by a qualified and certified collector. Chain-of Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognized International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this agreement:

1. The Father is required to maintain his head hair at a length of not less than four centimetres and/or neither head hair nor body hair is to be cut, bleached or dyed between the date of this Order and the time of collection of hair;

   
   

2. The Father is required to make an appointment with AWDTS for the purpose of providing a hair sample for hair drug testing purposes and undertake such testing to take place as follows:

   
   

   (i) In the month of August 2023, so that the test results are available and provided to the Mother on or before 31 August 2023 (“the first test”) with the Father to bear the cost;

   
   

   (ii) In the month of February 2024, so that the test results are available and provided to the Mother on or before 28 February 2024 (“the second test”) with the Mother to bear the cost provided that the first test is negative for alcohol/ethanol.

   
   

   (iii) In the month of June 2024, so that the test results are available and provided to the Mother on or before 30 June 2024 (“the third test”) with the Father to bear the cost.

   
   

3. Each parent is at liberty to provide AWDTS with a copy of these orders.

   
   

4. The Father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of each test to the Mother upon receipt of such test results.

   
   

5. The hair drug test may screen for drugs of ALCOHOL/ ETHANOL as required.

   
   

6. AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS' selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory's compliance level with international Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available.

The timeframe for undertaking the test is of essence and the court may make necessary orders to comply with testing including orders for detection of a specific drug or a number of drugs. 

The court may make orders to reduce time spent with the child or supervised time in circumstances of a positive test result.

If you have concerns about your partner abusing drugs, please feel free to contact Longton Legal for an obligation free discussion. 

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*