Alcohol and drug abuse and its impact is seen every day in family law.  But how does the substance abuse affect your matter, either during initial stages, negotiation, mediation, or Court?

 

In respect of parenting

The effects on a family of someone being affected by substances relate to more than just the substance user.  The effects can be more than just family centric, and relate to the larger community.  A drug or alcohol affected parent, child, or significant other can often affect the way a family functions as a whole.  Are the members safe or do other protections need to be put in place?  How does this impact the parents being the best parents they can be? Are there criminal proceedings that need to be considered?

Throughout parenting matters, parental capacity is always considered.  Capacity is about the parents ability to ensure that the children’s needs are met, including when the children are in their care, or another persons care.  Can the parent with the care of the children ensure that their special needs are met, if they have them?  Can the parent ensure that someone is available to drive the children (in the event they can’t), if the need arises, whether that is for medical treatment, changeover or school?  Are the intellectual needs and emotional needs of the child met?  The list of what capacity covers, is not exhaustive.  Capacity is not a one size fits all concept, but the Courts will often look to who has the best ability (particularly if both parties are affected by substance abuse) to meet the needs of the child in the safest way possible, from the parents/caregivers available to the child in question. 

Capacity is usually in question if there is an issue with substance abuse of a parent, or significant other.  There is much medical research identifying the difficulties that parents have, if they have substance abuse issues, in being able to parent the actual child.   There is further evidence about the long term effect on children of having parents who are substance abusers, including alcohol, tobacco and other drugs (illegal and legal), and this includes those children being more at risk of developing a variety of behavioural, emotional, cognitive, social and mental health issues.   This is not something that any of us want to see happen.  The Court will often be very resistant to a parent with a substance abuse issue, having the primary care of a child, where it can be identified that the substance is affecting their capacity to care for their child.

Some of the issues we see often with parents affected by substance abuse include:

• prioritising spending on substances, whether illegal or illicit, rather than using the finances for everyday living expenses. 

• The limited employment availability or continuance for the parent.  

• There may be an unavailability of a parent due to the effect of the substances on that parent, or it may reduce the care of the child which can lead to neglect.  

• The parent may be more prone to mental health challenges or violent behaviour, than they may have been without the substance. 

Boutress and Chassin 2015 note that there is a general consensus among researchers, clinicians and policy makers (which includes the Court) that parental substance abuse negatively affects child well-being.

 

In Property matters

Of course, if you don’t have the ongoing care of a child due to any reason including substance abuse, your entitlement to property settlement may be impacted.  This is determined on a case by case basis, but is worth considering.

Reasons for this include:

1. A persons entitlement to a property settlement can be reduced due to money being spent on substances or alcohol either during the relationship or after separation.  

2. People can also argue that the other persons substance use led to that person’s role becoming more difficult. This can be due to a number of reasons, but particularly when this results in an increase in domestic violence.  

3. A person may have been unable to contribute financially to the same extent as they may have otherwise been able to, due to the impact of the substance abuse.

While we are speaking of both legal and illegal substances, it can be seen in so many ways how abuse of either can negatively impact your family law matter.  

 

Drug and alcohol testing?

There are multiple ways that drug and alcohol testing can occur.  Often allegations are made, and the best way to disprove these is to voluntarily undertake testing.  The appropriate type of testing depends on the substance alleged and when it has been taken.  For example, some substances may have a short half life (meaning their levels change in a relatively short time, sometimes a few days) in a urine test but will show up in hair strand testing.  This is something that you need specific advice in regards to.  

Often the cost of testing can also be an issue.  For example urine testing may be much cheaper, but not the best way to test for certain substances.  In some circumstances hair strand testing may be too expensive for people to reasonably afford.  We see many orders made which require testing to be undertaken within a certain timeframe and if this does not occur then the result will be deemed as positive for the substance.   This is something to consider if you are agreeing to do a test that is going to be difficult for you to actually undertake.

As always, obtain advice from a solicitor experienced in family law, to assist with the determination as to what would best assist you and your family through these issues. If you would like further information, please contact us at 07 4639 0000.

Bountress K., & Chassin L. (2015). Risk for behavior problems in children of parents with substance use disorders. American Journal of Orthopsychiatry, 85, 275–286.