Cannabis and Fam­i­ly Law

Cannabis. Mar­i­jua­na. Pot, Dope. Mull. Yarn­di. These are all names for the most com­mon­ly used ille­gal drug in Aus­tralia[1]. Pur­suant to the Depart­ment of Health’s gen­er­al fact­sheets on cannabis[2], some of the phys­i­cal effects of using mar­i­jua­na may include drowsi­ness, tem­po­rary loss of mem­o­ry, risk tak­ing behav­iour and an impaired capac­i­ty as a parent/​primary car­er of chil­dren. Psy­cho­log­i­cal effects may include con­fu­sion, changes in per­cep­tion, hal­lu­ci­na­tions, anx­i­ety and pan­ic, con­cen­tra­tion prob­lems, and mem­o­ry problems.

While drug use is not specif­i­cal­ly referred to in the Fam­i­ly Law Act 1975, the Fed­er­al Cir­cuit Court requires par­ties to dis­close alle­ga­tions of drug and alco­hol abuse in the Notice of Risk doc­u­ment which is manda­to­ry for both par­ties to file at the start of Court pro­ceed­ings. It is not uncom­mon where one par­ty is alleg­ing drug use by anoth­er par­ty that uri­nal­y­sis or blood tests are then ordered by the Court.

Addiction/​Dependency to Cannabis

In the case Hogan & Hogan [2008][3] the Full Court com­ment­ed that drug use was rel­e­vant to the deter­mi­na­tion of what was in the best inter­ests of the child. The Court stated:

In a case where it is alleged that one or both par­ents, or any per­son in the care of a child, are addict­ed to drugs, this is high­ly rel­e­vant because, potentially:

  1. it might under­mine or even destroy the mean­ing­ful rela­tion­ship that exists between child and par­ent and/​or;

  2. it cre­ates a need to pro­tect the child from phys­i­cal or psy­cho­log­i­cal harm from being sub­ject­ed to, abuse, neglect or fam­i­ly vio­lence attrib­ut­able to the drugs; and/​or

  3. it adverse­ly impacts on the nature of the rela­tion­ship of the child with the drug depen­dent per­son and/​or

  4. it impairs the capac­i­ty of that par­ent or per­son to pro­vide for the needs of the child; and/​or

  5. it demon­strat­ed a poor atti­tude to the child and to the respon­si­bil­i­ties of par­ent­hood; and/​or

  6. it might lead to sit­u­a­tions of fam­i­ly violence.

The Full Court went on to com­ment (not­ing in the judg­ment that this was nei­ther evi­dence nor mate­r­i­al in respect of which judi­cial notice was taken)

Par­ent­ing and drug addic­tion are a poten­tial­ly dan­ger­ous mix for the child. Drug depen­dence cre­ates a pre-occu­pa­tion that is incon­sis­tent with respon­si­ble par­ent­hood. The com­pul­sion for drugs is not incon­sis­tent with parental love, but is often incon­sis­tent with the abil­i­ty to meet the needs of chil­dren. Choic­es are often made that com­pro­mise the abil­i­ty of par­ents to pro­tect their chil­dren. Fund­ing and main­tain­ing a drug habit cre­ates insta­bil­i­ty in fam­i­ly life. Chil­dren can often become sec­ondary pri­or­i­ties, and thus vul­ner­a­ble to harm. Rou­tines are often dis­rupt­ed. Some­times drug depen­den­cy leads to expo­sure to crim­i­nal behav­iour and the crim­i­nal law. Even if a par­ent is phys­i­cal­ly present for a child, drug depen­dence often leads to emo­tion­al unavail­abil­i­ty for chil­dren, which is some­times the most dam­ag­ing impact. In short, parental capac­i­ty is gross­ly compromised.”

In the case Hogan & Hogan [2008][4], the hus­band gave evi­dence that sug­gest­ed he con­sumed 600 joints a year. He stat­ed that the chil­dren had nev­er seen him smoke cannabis and that there was no evi­dence of actu­al abuse or neglect. The hus­band had held down pro­fes­sion­al full time employ­ment for an extend­ed period.

The fam­i­ly con­sul­tant had advised that if the Court found that the hus­band was addict­ed, there would be con­cerns about the hus­band’s abil­i­ty to inter­act and to be avail­able for the chil­dren and would dimin­ish his par­ent­ing capac­i­ty. More­over, the fam­i­ly con­sul­tant stat­ed, if the hus­band’s con­sump­tion of cannabis was con­stant and obvi­ous there was a chance he would be a poor role mod­el for the chil­dren. The fam­i­ly con­sul­tant dif­fer­en­ti­at­ed between an addic­tion and a con­trolled usage.

The Full Court request­ed that Coun­sel pro­vide it with evi­dence about the impact on par­ent­ing capac­i­ty of an addic­tion to cannabis. An expert wit­ness advised that there was no spe­cif­ic lit­er­a­ture on the issue but that

Occa­sion­al use of cannabis was of lit­tle con­cern, but depen­dent use is different.” 

The expert wit­ness opined that occa­sion­al use of cannabis is con­sis­tent with being able to par­ent but that there was a need to assess each individual.

The Full Court found that the hus­band was addict­ed to cannabis and had a reduced capac­i­ty to meet the chil­dren’s needs and pro­tect them from the risk of abuse and neglect. It adopt­ed the wife’s pro­pos­al of allow­ing 4 unsu­per­vised and con­tin­u­ous nights per fort­night but made no orders for test­ing. Whether the Court would have ordered less time had the moth­er not pro­posed 4 nights per fort­night can only be a mat­ter of con­jec­ture. Oth­er sim­i­lar mat­ters sug­gest it would.

  • In the case of Bartin & Bad­dle[5], the father had start­ed smok­ing mar­i­jua­na when he was 15 and had done so for 17 years. He had been smok­ing 7 grams per week but had more recent­ly halved his con­sump­tion. At the time of the tri­al he had done one clean drug test and advised the Court he was no longer con­sum­ing mar­i­jua­na. The Court made orders that the child spend time with the father on 2 unsu­per­vised and con­tin­u­ous nights per fort­night and that he under­take ran­dom uri­nal­y­sis test­ing for 12 months.

  • In the case of Langs & Ash­ley[6], the moth­er pro­vid­ed con­flict­ing infor­ma­tion about her cannabis use but at some point had been using 6 to 7 joints per day. The Court made orders that while the child spend time with the moth­er on 5 unsu­per­vised and con­tin­u­ous nights per fort­night but that should she return a pos­i­tive uri­nal­y­sis test, the time would be sus­pend­ed until she had pro­vid­ed 2 fur­ther con­sec­u­tive tests tak­en 7 days apart. There was no end date placed on this testing.

Recreational/​Occasional Use 

Even when the Court con­sid­ers that cannabis use has been recre­ation­al, it has been reluc­tant to accept a par­en­t’s con­tin­u­ing use. The writer has been unable to find a case in which a par­ent has informed the Fam­i­ly Law Courts that he/​she intends to con­tin­ue occa­sion­al cannabis con­sump­tion and been allowed to do so, although in the Supreme Court case of Re Geor­gia and Luke[7] (a mat­ter between the Depart­ment of Com­mu­ni­ty Ser­vices and the par­ents as opposed to between the par­ents them­selves) com­ments were made in rela­tion to parental respon­si­bil­i­ty in light of recre­ation­al use.

In that case, an offi­cer of the Depart­ment of Com­mu­ni­ty Ser­vices removed the chil­dren from their home. The par­ents sought an order that the chil­dren be returned to their care. Palmer J found that there was no evi­dence that the par­ents had abused the chil­dren phys­i­cal­ly or emo­tion­al­ly. There was no evi­dence that the chil­dren were neglect­ed or failed to thrived. There was no evi­dence of alco­hol abuse, psy­chi­atric or psy­cho­log­i­cal ill­ness, or dis­abil­i­ty. Palmer J was sat­is­fied that the par­ents used cannabis recre­ation­al­ly and were not depen­dent. This was con­firmed by a clinician. 

Coun­sel for DOCS agreed that the use of cannabis should not affect DOCS’ assess­ment of parental respon­si­bil­i­ty unless it actu­al­ly impaired the par­en­t’s abil­i­ty to care prop­er­ly for a child. Palmer J 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. As there was no evi­dence to that effect, the chil­dren were returned to their par­ents’ care.

In the case of Jor­dan & Callaghan, the father stat­ed that he no longer used cannabis. Ter­ry FM con­sid­ered that the father used cannabis much more fre­quent­ly than admit­ted but that there was no evi­dence which would allow him to make find­ings about the effect of his use on his abil­i­ty to care for his child. Ter­ry FM gave the father lim­it­ed unsu­per­vised week­end time and no hol­i­day time, restrain­ing him from using ille­gal drugs 12 hours pri­or to and while the child was in his care but con­sid­ered that there was no point mak­ing orders about drug screen­ing tests.

In con­trast, in the case of Can­non[8], the Court accept­ed that the moth­er used mar­i­jua­na week­ly on a recre­ation­al basis. The moth­er assured the Court that she gen­uine­ly wished to stop using mar­i­jua­na and was under­tak­ing coun­selling through the Drug and Alco­hol pro­gram. The Court ordered that the child spend 9 nights per fort­night with the moth­er but that for the next 18 months the moth­er had to:

  • under­go uri­nal­y­sis test­ing once per month;

  • under­go ran­dom uri­nal­y­sis test­ing no more than once every 2 months;

  • under­go 2 hair fol­li­cle tests 9 months apart

and should the moth­er return 2 pos­i­tive drug tests with­in 3 months, on the first occa­sion the 18 month peri­od would recom­mence and on the sec­ond occa­sion the father would have sole parental respon­si­bil­i­ty, the child would live with the father, and only spend super­vised time with the moth­er until she had 12 months of clean drug tests.

It is of course rea­son­able that depen­dence and addic­tion is not accept­ed to be in the best inter­ests of a child and that a mar­i­jua­na dependent/​addicted par­ent should be sub­ject to test­ing and assur­ances that he or she will no longer con­sume same. 

How­ev­er, there appears to be a con­flict­ing approach in rela­tion to recre­ation­al or occa­sion­al use. While such use is con­sid­ered by some experts to be con­sis­tent with appro­pri­ate par­ent­ing, notwith­stand­ing that it is present­ly ille­gal to use mar­i­jua­na, the Court appears to gen­er­al­ly require test­ing and assur­ances that the par­ent will no longer con­sume same.

In 2015 the Fed­er­al Gov­ern­ment announced it intend­ed to amend leg­is­la­tion to allow cannabis to be grown for med­i­cine or sci­ence although it was quick to con­firm it had no plans to decrim­i­nalise mar­i­jua­na for recre­ation­al use [9]. It is expect­ed that while med­i­c­i­nal cannabis will be able to be cul­ti­vat­ed at a fed­er­al lev­el it is still up to each indi­vid­ual state to in turn leg­is­late to decrim­i­nalise pos­ses­sion and per­son­al cul­ti­va­tion for com­pas­sion­ate med­ical pur­pos­es and NSW has not yet done so.

When the decrim­i­nal­i­sa­tion of med­i­c­i­nal cannabis occurs, will this impact on par­ent­ing appli­ca­tions in the Fam­i­ly Law Courts? The phys­i­cal and psy­cho­log­i­cal effects set out in the NSW Depart­ment of Health’s fact­sheet will not change but will the Courts be less like­ly to require test­ing and assur­ances from par­ents using mar­i­jua­na for recre­ation­al and / or med­ical purposes?

Some of these issues are already rear­ing their heads in the Unit­ed States where states have decrim­i­nalised med­ical mar­i­jua­na (and some have decrim­i­nalised recre­ation­al mar­i­jua­na). There have been cas­es where par­ents who use med­ical mar­i­jua­na have had their chil­dren removed from their care. While the laws in rela­tion to par­ent­ing are dif­fer­ent in the Unit­ed States, it remains to be seen just how the Courts will view this in Australia.

If you are con­sum­ing drugs or you believe the mother/​father of your child is con­sum­ing drugs, you should obtain advice on how this will impact on your par­ent­ing arrange­ments. One of our lawyers at Swaab Attor­neys will be able to assist.

[1] NSW Depart­ment of Health website

[2] Fact­sheet from the NSW Depart­ment of Health http://​www​.health​.nsw​.gov​.au/​m​h​d​a​o​/​F​a​c​t​s​h​e​e​t​s​/​F​a​c​t​s​h​e​e​t​s​/​c​a​n​n​a​b​i​s.pdf

[3] Hogan & Hogan [2008] FMCAfam 1219 (14 Novem­ber 2008)

[4] Hogan & Hogan [2008] FMCAfam 1219 (14 Novem­ber 2008)

[5] Bartin & Bad­dle [2008] Fam­CA 1089 (15 Decem­ber 2008)

[6] Langs & Ash­ley [2014] FCCA 2558 (13 Novem­ber 2014)

[7] Re Geor­gia and Luke (No 2) [2008] NSWSC 1387 (19 Decem­ber 2008)

[8] Can­non & Can­non [2010] FMCAfam 681 (16 July 2010)

[9] Media Release from The Hon Sus­san Ley MP dat­ed 17 Octo­ber 2015 on https://​www​.health​.gov​.au/​i​n​t​e​r​n​e​t​/​m​i​n​i​s​t​e​r​s​/​p​u​b​l​i​s​h​i​n​g​.​n​s​f​/​C​o​n​t​e​n​t​/​546​F​B​9​E​F​48​A​2​D​570​C​A​257​E​E​1000​B​98​F​2​/​$​F​i​l​e​/​S​L​-​123.pdf as well as Media Release from the Hon Sus­san Ley MP dat­ed 3 Decem­ber 2015 http://​sus​san​ley​.com/​m​e​d​i​c​i​n​a​l​-​c​a​n​n​a​b​i​s​-​t​o​-​b​e​-​c​u​l​t​i​v​a​t​e​d​-​t​h​r​o​u​g​h​-​s​i​n​g​l​e​-​n​a​t​i​o​n​a​l​-​s​c​heme/