By Riley Fraser, Lawyer and Sophia Pippos, Special Counsel
Cannabis usage is a blazing topic in the family law jurisdiction and has led us all to confront a blunt reality – sometimes parents smoke marijuana.
Sometimes recreationally, sometimes medicinally, and sometimes with an obsessive dependency.
But as a parent, does using cannabis mean that you are putting your child at risk and what would a Court think?
In Australia, cannabis stands out as the most widely used illicit drug, with 41% of people aged 14 and older reporting lifetime use and approximately 11.5% indicating use in the past year – around 2.5 million recent users.[1] Due to its prevalence, cannabis is often labelled a “gateway” drug: since it’s more socially acceptable than other illegal substances, more accessible and is often ‘tried first’.[2]
Society seems more willing to now accept that mum and dad might share a joint after a stressful week…which might be “totally chill” … but what happens if mum and dad break up and their parenting dispute comes before the Court? That would not be “chill” at all.
In Court, if one parent raises the other parent’s cannabis use as an issue, then the Court must undertake an assessment of that issue on the balance of probabilities, while having regard to whether the cannabis usage exposes the child to an unacceptable risk of harm, or not. This calls into question whether someone can parent their child safely and effectively while being a cannabis-user and falls under the broader question of what is in the best interests of the child.
Understandably, parents will want a straightforward answer to this question. But, as with all decisions in Court, this will be considered on a case-by-case basis, and, based on the evidence available.
The side effects of cannabis are well-known. Users can expect to feel a sense of euphoria, difficulty concentrating or remembering, increased blood pressure and heart rate, paranoid thinking and slowed reaction time. The long-term side effects can be decreased mental sharpness, poor performance, depression, anxiety and it can also lead to addiction.
It would be reasonable to assume most Judges would understand and express concern that these side effects can generally affect your ability to respond to a child’s needs and ensure their safety, especially in responding to emergencies that may arise, the need to make quick decisions, or even to drive a car (although, the same could be said for alcohol).
There are different types of preventative orders the Court can make in an attempt to manage any risks to a child, like, the parent must subject themselves to urine or hair follicle drug testing, and that time with a child be limited if a positive drug test is returned. The Court can also make more protective orders like, the parent have only supervised time with the child, or limited unsupervised time, in situations where the risk of harm is too great.
Generally, Courts are reluctant to make orders by way of injunction preventing illicit drug use on the basis it is already illegal, and making an order to restrain usage implies the Court condones illegal drug use in some circumstances.
The Court has considered the impact of cannabis use on parenting in a few standout decisions which highlight that although, in some aspects of society, attitudes to cannabis may have changed, the attitudes within the Courts have not.
In Hogan & Hogan,[4] the father gave evidence that he consumed around 600 joints per year.
He stated that his children had never seen him smoke cannabis, he held down full-time employment, and that there was no evidence of parental neglect or abuse.
In this case, the Court found that the father did have an addiction, leading to a reduced capacity to meet the children’s needs and to be available for them. The chance that the father would be a poor role model for the children was also a factor in the Court’s ultimate decision.
The Court considered the relevance of his cannabis dependency on his parenting capacity, including that his dependency might:
The Court adopted the mother’s proposal that the father have four unsupervised and consecutive nights per fortnight, did not make any orders for drug testing, and commented that:
“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 […] Children can often become secondary priorities, and thus vulnerable to harm. Routines are often disrupted.”
In Bartin & Baddle,[5] a father who had been smoking cannabis for 17 years was ordered by the Court to undertake drug testing once per month so that he could spend time with his children on two unsupervised and consecutive nights per fortnight. This was despite the father’s reduction of his cannabis consumption by half and a clean drug test at the time of the trial.
The Court understands that there is a difference between an addiction or dependency, compared to more controlled and occasional usage.
For those who dabble, parents must still be cautious of how their occasional cannabis use may be interpreted by the Court, specifically while a child is in their care, or proximate to when they may be caring for a child.
As referenced above, the Court can impose various orders to manage risk. It can also make orders restraining parents from taking illegal substances, bus as we have said, Courts are reluctant to make orders that imply it condones illegal drug use in some circumstances.
On appeal in Barrett and Barrett,[6] the Full Court upheld final orders limiting the father’s time with the children due to his use of cannabis, noting that use by a parent while caring for children means that the children are placed at risk given the “diminished ability to respond to medical or other emergencies, such as a fire, that could arise with their children.”
Again, the impact of personal use will depend upon the individual family’s circumstances. But what is often missed in these discussions is that similar to driving without a licence, recreational cannabis use is illegal, and the Courts cannot be expected to just be cool about it. Public attitudes may have evolved in some aspects of society, but the Court cannot and will not condone illegal behaviour.
Growing research has highlighted the therapeutic benefits of cannabis (in various forms, including oils, vaporisers and gummies) particularly in managing chronic pain, reducing inflammation, alleviating symptoms of anxiety, and controlling seizures in certain medical conditions. [7] In 2016, the legislation finally caught up with the shift and medicinal cannabis use was legalised at a federal level. This allowed Australians to access cannabis under medical supervision. With greater awareness of the medicinal properties of cannabis, the stigma of its use has reduced and, compared to some pharmaceutical drugs, cannabis is perceived by many as a more natural and less addictive alternative to other prescription drugs.
But to be clear, medicinal cannabis is only legal for possession and use by individuals if it is lawfully supplied to them, like, prescribed by a medical practitioner who has the necessary Commonwealth authority.[8] Medicinal cannabis prescribed lawfully will be labelled as a lawful prescription from a pharmacy, and the validity of the prescription can be tested by contacting the dispensing pharmacist.
The Therapeutic Goods Administration (TGA) is the regulatory body responsible for evaluating medicinal cannabis and monitoring cannabis products. The TGA has released guidance for the use of medicinal cannabis and recommended that before commencing treatment, consideration by the prescribing medical practitioner should include the individual’s parental and family responsibilities such as caring for young children and child safety.[9]
Whether or not the Court accepts that someone has a legitimate prescription for medicinal cannabis, based on the evidence provided, is a serious and relevant concern to parents who use the drug to treat a condition they may have, and it is incumbent on family lawyers to help those parents navigate the Court process.
Importantly, the Courts have made clear in recent decisions that the only difference between cannabis for recreational use and cannabis for medicinal use is the ‘prescription’ nature.
While the test for what a ‘prescription’ actually is in the Court’s eyes is less clear, we can hazard a reasonable guess that a ‘prescription’ must be valid, given by a registered medical practitioner, and includes a recommended dosage, frequency of dosage and the specific condition that is being treated. That is, it complies with the lawful requirements for medical marijuana.
It can also be assumed that the more evidence you are able to produce to the Court to establish grounds for your medical marijuana the better – a supportive letter from your medical practitioner for starters, and detail of your doctor’s qualifications. To properly consider the effects of this drug on someone’s capacity to parent, the Court is going to need to hash out the finer details, through admissible evidence.
In essence, if you plan to argue that you (or your client) use cannabis for medicinal reasons, but do not hold a prescription for it, then you can expect your argument will go nowhere.
There are also some cases in this area that stake out the Courts attitude towards medicinal cannabis and serve as a warning that even prescriptions do not necessarily protect you from an adverse finding of overuse.
Aleksandrov & Avellino[10] concerned a mother and father in respect to their young son. After the relationship between the mother and father broke down, the father suffered a serious injury and was prescribed medicinal cannabis.
Baumann J considered the discrete issue as to further drug testing of the father who held a valid prescription for medicinal cannabis. His Honour considered the mother’s continuing concern that even if the father had a prescription for use of medicinal cannabis for pain relief, that the levels detected could represent an overuse or, additional use of recreational cannabis, that combined makes the child potentially at risk of harm in the father’s unsupervised care.
His Honour appreciated little utility in drug testing the father where neither the mother or father were prepared to meet the costs of the testing and further noted that bringing ‘comfort’ to the mother was not the absolute test to be applied in relation to drug testing.
However, the final orders restrained the father during the 48-hour period prior to him spending time with the child, against using alcohol or illegal substances, including medication prescribed by a registered medical practitioner not taken in accordance with any associated prescription.
In McLeay & McLeay,[11] Riley J too considered the issue of medicinal cannabis and a father’s overuse. His Honour, while considering that the use of cannabis did not necessarily mean a person cannot have unsupervised time with a child, did consider it a risk that the person affected by cannabis would be unable to drive in an emergency and queried whether or not this would be regarded as neglect.
But, if you’re bypassing your GP and searching the dark corners of the internet for an online prescription, then suffice to say, in the Court’s eyes, it may not be worth the paper its printed on.
Online prescription providers can be illegitimate and sell products that may not be approved for use by TGA. While some private medicinal cannabis clinics will offer a telehealth appointment with the clinic’s doctor, many websites offer “self-assessment” and flagrantly breach regulatory guidelines.
If you use an illegitimate provider like this to obtain a prescription, then you can expect that this will insufficient evidence of a real prescription and your argument will lack credibility.
For parents who use cannabis recreationally, or medicinally (with or without prescriptions), the message is the same – tread carefully and don’t be green to the risks and evidence needed to support your case.
If you’re seeking advice in relation to your family law matter, Mills Oakley Family Law Brisbane will be happy to assist. Please contact the team on 07 3010 8021.
[1] Australian Institute of Health and Welfare. (2024). Trends in cannabis availability, use, and treatment in Australia, 2013–14 to 2021–22. Retrieved from https://www.aihw.gov.au/reports/alcohol-other-drug-treatment-services/cannabis-use-trends-and-availability-in-australia.
[2] ‘Cannabis and the Gateway Drug Theory: Correlation or Causation – Where does the Evidence Point?’, October 2021, Dalgarno Institute.
[3] Section 60CC of the Family Court Act 1975.
[4] [2008] FMCAfam 1219.
[5] [2008] FamCA 1089.
[6] [2017] FamCAFC 4.
[7] Giles, N-H ‘The Challenges of ‘medicinal cannabis’ and mental health: a clinical perspective’ Br J Clin Pharmacol (2018) 84(11) 2499 – 2501.
[8] Queensland Health, retrieved from https://www.health.qld.gov.au/public-health/topics/medicinal-cannabis/regulation/legislation.
[9] ‘Guidance for the use of medicinal cannabis in Australia: Overview’, November 28 2024, Department of Health and Aged Care Therapeutic Goods Administration.
[10] [2024] FedCFamC1F 594.
[11] [2024] FedCFamC2F 798.
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