Drug and Alcohol Use and Parenting Arrangements: What Parents Need to Know

Written by Joanne Bragg

This article delves into the impacts that drug use and alcohol have on parenting arrangements and the Federal Family Court of Australia’s system with respect to parenting proceedings.

In family law, allegations or concerns regarding drug and alcohol use, substance abuse, or alcohol dependency by one or both parents regularly arise in parenting matters. Those concerns can arise in a range of situations, including where a parent:

- uses illicit substances, such as heroin or cannabis;

- consumes alcohol excessively;

- takes prescription medication that has not been prescribed to them;

- uses medication that is prescribed to a parent, but in levels that exceed the prescribed amount; and

- uses cannabis even in circumstances where a parent has a script for medical marijuana.

Typically, there are concerns raised that the parent is using other, non-prescribed cannabis

as well as, or instead of, the medical marijuana.

Why does substance use matter in parenting proceedings?

So, how and why should parents (and the Court) consider the use of illicit substances and excessive alcohol use or abuse when considering parenting arrangements, parenting orders, and arrangements for children?

Firstly, the Family Law Act 1975 requires that the Court make orders that are in the best interests of the child, which is the primary consideration in all parenting proceedings.

When assessing what is in the best interests of the children, if there are allegations of illicit substance use or excessive alcohol use, the Court will need to make an assessment as to whether that allegation poses an unacceptable risk of harm to the children. There are can be many potential risks to children where a parent is using illicit substances, affected by substances, or is inappropriately consuming alcohol

including but not limited to :-

• the children being exposed to many changes to where they live (perhaps due to the parent living in that home not being able to pay the rent or being evicted);

• exposure to family violence and anti-social behaviour;

• a risk that a child’s needs are not being noticed or addressed properly;

• exposure to criminal activity and drug dealers;

• a risk of disruption to school attendance for a child, because the parent cannot manage

• getting the child ready for school and transporting them to school;

• a risk of minimising or lowering the access to transport for the child;

• an increased risk of being involved in a motor vehicle accident;

• a risk that the child would not be able to be taken to an emergency centre because of a parents

  diminished ability to respond to such an emergency;

• the effects of a parent using medical marijuana, and whether that impacts on their parenting

• Capacity.

While this appears to be a long list of potential issues, it is important to understand that the use of illicit substances or alcohol may not always result in harm or risk to children to the extent set out above. Every family law matter is different, and each situation must be considered based on its own facts and the impact, if any, on the child or children involved. There may be some circumstances where a parent’s substance or alcohol use does not affect their parenting capacity. However, where risks are identified or alleged, steps may need to be taken to protect the children and ensure that any parenting arrangements sought are in their best interests. This can include asking the Court to make Orders designed to monitor risks and promote the children’s safety.

What happens if there are allegations of substance use?

Monitoring and assessing substance abuse, drug use, or alcohol abuse can assist parents and the Court when determining appropriate parenting orders and arrangements for children.

There are several drug testing and alcohol testing options available to determine whether a parent is abusing drugs or alcohol, including: 

1. A hair follicle test for illicit substance use and/or excessive alcohol use;

2. A carbohydrate-deficient transferrin (CDT) test to assess alcohol use;

3. Urinalysis, or requiring a person to undertake breath analysis immediately prior to spending time with a   child.

Each of the above tests are different, and one may be more appropriate than another, depending on the circumstances.

Once a parent has some information to assess the risk, they will be better prepared to negotiate appropriate arrangements. It always depends on the risk identified and the level of substance use, as to any Orders that should be sought from a Court or should be sought by agreement with the other party. In a recent decision from 2024 1 , Judge Riley stated,

“Cannabis use does not necessarily mean that a person cannot have unsupervised time with a child. However, there is a risk that a person affected by cannabis will not be able to properly care for a child and will, in fact, neglect them. A person affected by cannabis cannot legally drive, which could seriously impact a child who needed to be taken urgently to hospital.”

Issues that can arise from alcohol abuse and illicit substance use are not simple, and there is no one-size-fits-all rule or solution. Whether you are a parent that is seeking to assess the risk to your children because of alcohol misuse or illicit substance use by the other parent, or you are a parent where these allegations have been made, we can assist.

1 McLeay & McLeay [2024] FedCFamC2F 798 at [302].

Important Disclaimer

The above information is general in nature and provided for educational and informational purposes only. It is not legal advice and should not be relied on as such. Every situation is different, and you should seek independent legal advice before making decisions about your own circumstances.