Tuesday 28 November 2017

Three Family Law Cases

Drug use by a parent is often alleged in Family Law parenting proceedings, typically in the context of one parent calling into question the ability of the other parent to provide appropriate care for the child/children.

Where drug use is alleged by one or both parents, a Court will often seek some independent evidence to determine whether or not there has in fact been drug use. The Court will typically make orders for one or both of the parents to undergo drug testing.

Orders for drug testing usually involve urine testing and/or hair follicle testing, however, it is important to understand that testing is not conclusive and some drugs are more readily identifiable than others.

Urine Testing VS Hair Testing

Urine testing is useful in a short-term context as it can provide information about drug use in the short period of time before the test sample is obtained. Hair follicle testing can provide a 90-day history of drug use in relation to certain drugs and is therefore generally considered a better source of information with respect to drug use.

Limits of hair follicle drug testing in Family Law proceedings

It is, however, important to appreciate that there are limits to hair follicle testing. Hair follicle testing for cocaine use is less accurate than hair follicle testing for marijuana, for example, as there is no definitive metabolite for cocaine. There is a single metabolite which is considered evidence of the use of marijuana.

This table prepared by Dimitri Geostamoulos, Chief toxicologist and manager of the Victorian Institute of Forensic Medicine, shows classes of drugs which are readily identifiable in urine and their detection times.

family law detection of drugs in urine table

QML provides a list of substances they routinely report within a hair drug test, including:

  • Amphetamine-type substances including Methylamphetamine and MDMA
  • Benzodiazepines
  • Cocaine metabolites
  • Cannabinoids and Synthetic Cannabinoids
  • Opiates/Opioids
  • Synthetic Cathinones and Hallucinogens including LSD

A judgment was handed down in Family Law proceedings in the United Kingdom on 29th September 2017 criticising the validity of hair follicle drug testing based on criticisms made by a trichologist (hair and scalp specialist).

In this case, a child had been removed from her mother at birth but returned to the mother when she was 6 weeks old under the supervision of the local authority. The removal occurred because the mother had provided an ‘ostensibly positive’ hair follicle drug test result which led to authorities determining that the child was not safe in the mother’s care. The mother had a history of drug abuse having used heroin and ‘crack’ when she was 21. The 3 older children of the mother had been removed from her and were being cared for by the maternal grandmother.

The mother was adamant that she had not used drugs during a 2 year period despite some positive hair follicle drug test results during that period. Testing organisations had interpreted the results as showing low-level cocaine use by the mother for at least part of the 2 year period. The processes of the testing organisations were identified as issues by the Judge, including the significance of findings of cocaine metabolites below “cut-off levels”.

LIMITS OF hair testing in family court

The Judge made a supervision order whereby the child remained in the mother’s care with the local authority to supervise this, rather than the care order sought by the authority (where the child would be placed in the care of the authority). This was despite a finding that the mother had used cocaine at a low level and infrequently during the 2 year period, and also the fact she had lied about it.

Hair falls short

The criticisms of hair follicle testing were partly based on analysing the significance of test results. It placed an emphasis on the need for experts to describe the process, record the results and explain their possible significance in a way that can be clearly understood by those likely to rely on the information.

It is expected that this case will have flow-on effects for drug testing in Family Law proceedings in other countries, including Australia.

Aylward Game Solicitors is able to provide you with practical advice regarding parenting matters and Family Law matters more generally. It is especially important to obtain advice if you have concerns about the other parent which may have an impact on the child.

For help navigating a matter you may be facing, please reach out to our team on 1800 217 217 or contact us.

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Monday 27 November 2017

Three Family Law Cases

The whole area of succession law in Australia is still dealt with by State Legislation and there are therefore variations in the arrangements and laws between the different states. Victoria has recently passed changes to the legislation in that state that govern what happens when somebody passes away without having left a valid Will. It reminds us of The Critical Importance Of Having A Will.

Victorian Wills Legislation

The new Victorian arrangements provide that when someone dies and leaves a partner but no children then the partner takes the whole of the deceased estate. If the deceased leaves a partner and children, who are the children of the surviving partner, then the partner takes the whole of the deceased estate. If the deceased leaves a partner and child/children who is not a child of the partner then the partner takes the personal chattels plus the first $451,909.00 of the estates plus interest and one half of the balance and the children of the person who has died share equally among the other half of the balance of the estate equally.

The Victorian Legislation also provides that the figure of $451,909.00 is the ‘index link’ according to the Melbourne Consumer price index. These Victorian arrangements are somewhat different to the arrangements that apply in Queensland. In Queensland, if there is one surviving spouse and no children, then like Victoria the spouse takes the whole of the estate. If there is a spouse and one child, the spouse takes half of the estate. If there is more than one child then the spouse takes 1/3 (or 33%) of the estate. In each case, the children share equally in the balance that remains.

To ensure that you avoid the uncertainty of your estate being dealt with according to the Laws passed in each state, which can be changed from time to time and which vary around the country, it is vital that you make an keep up to date a properly executed Will.

We also suggested at the same time it is an ideal opportunity to address the making of an Enduring Power of Attorney.

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Tuesday 14 November 2017

Three Family Law Cases

When two people separate often after a very long relationship, financial issues can become problematic in that there is stress involved with the separation itself and then you have to start thinking about well how we’re going split these assets up how we’re going to finalise things between us and that can often become a complicated process especially if there are a lot of assets. The most important thing after a separation has taken place is to seek legal advice as early in the process as possible the sooner that you’re aware of your rights and your obligations the sooner you’re going to be able to take steps to  formalize matters between you and your former partner so as a lawyer I’ll  take all of those things into consideration and do my best to help you to reach a financial settlement which is suitable for you as it can be.

The post Financial Settlement appeared first on Family Law Brisbane.



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