Smoke weed?
‘If I ask for him to do a drug test, will I have to do one too? … I smoke a bit of weed sometimes.’
Nicole collected her children last weekend, and noticed some drug paraphernalia in their father’s living room. She’s concerned he might be using meth or another dangerous drug. Nicole has a full time job, she’s well-presented and articulate. She’s a good Mum, and prepared to do whatever is necessary to ensure her kids are safe.
So in 2023, what will the court say about her marijuana use?
The Family Law Act does not mention drug use as a relevant factor in determining parenting matters. With the amendments to come into effect in 2024 there will six consideration in determining the best interests of the child which can be summarized as:
the child and parents’ safety,
child’s views,
child’s needs,
parent’s capacity,
benefit of relationships with parents and other people; and
anything else relevant to the child.
In the past the court has held that in circumstances where a parent is addicted to drugs it will be relevant because it could undermine the relationship they have with the child, expose the child to physical or psychological harm, impair their capacity to care for the child, demonstrate a poor attitude to their responsibilities as a parent, and might lead to family violence. It is not the drug use itself which the court is concerned with, but the downstream consequences of that drug use.
If a parent does use marijuana it will not necessarily be fatal to the parenting orders they are seeking, provided they can satisfy the court that their drug use does not negatively affect their children, or that despite their drug use, the orders sought are still in the best interests of the children.
It will typically, if not always be to a client’s advantage to be honest and forthcoming about such drug use, and to address at the earliest possible moment how it does or does not impact on their role as a parent, and to take steps to address their use of illicit drugs and alcohol if necessary including my consulting with a psychologist or participating in programs with AODS or Drug Arm.
