How does addiction play out in the Family Courts?

10 Aug How does addiction play out in the Family Courts?

Considerations for happier, healthier communities and families

There’s no other way to say it, addiction issues are a big problem in our society. They can rip marriages apart, destroy lives and impact future generations. Whether it’s drugs, alcohol, gambling, sex or other, there are detrimental effects for all involved – not just the person suffering (or functioning) with the disease.

While you may be able to guess how severe and ‘obvious’ drug or alcohol addiction may play out in child custody matters, there are many other ways addiction can play out in family law matters – and you need to be prepared. Below we cover a few examples of addictions and just some of the consequences and considerations.

SUBSTANCES (including alcohol)

The most obvious and talked about issue with this type of addiction is, of course, child custody. The number one consideration the Court will make is whether the addiction poses an unacceptable risk of harm to a child. Only then is it relevant. These risks can include inadequate care or supervision of a child, impaired decision making, passive inhalation and exposure to substances or domestic abuse.

The number one key factor here is that it must be proven. It can’t be a suspicion of addiction and you must have evidence of behaviour that may cause unacceptable risk to a child and the connection between the two. Meaning, this behaviour happens when the person is under the influence.

So how does the Court look at this? Most commonly, the Court will order hair follicle or urine testing but may also include blood, oral swabs or breath testing.

If the tests (often random) come back positive, they will explore minimising risk to the children. Very rarely is a no-access order given as it is recognised that regular contact with both parents, when safe to do so, is important for the development of the child.

Risk minimisation may include:

• Ongoing drug testing
• Supervised contact
• Rehabilitation and/or counselling.

GAMBLING

Preparing for a financial settlement requires pooling assets. That means full transparency of all bank accounts, super funds and other assets and liabilities. And this includes a gambling debt one party may have wracked up – whether the other spousal partner knows about it or not.

That’s right, their debt is your debt! Sadly, the existence of a problem or the severity of it, may only be revealed during this process.

Part of this process though is an assessment of respective parties’ financial and non-financial contributions which helps determine the division of assets. However, this may also apply for ‘negative contributions’ where the Courts may make an adjustment according to the impact.

If you become aware of this type of debt in your relationship, you should seek immediate legal advice on how to protect yourself. This may be by way of a Binding Financial Agreement in your relationship.

SEX

Does your case involve an affair by an alleged or diagnosed sex addict? Gone are the days where you are required to determine ‘fault’ in a divorce, however sex addiction can still affect settlement and custody matters.

While adultery won’t affect child custody, the Courts will weigh up whether the addiction will have a negative impact on the children. For example, has the addict performed lewd activities in front of the children? Or left the children unsupervised to pursue a sexual rendezvous? These factors may come into play with custody decisions.

Money spent to support the addiction (e.g. brothels and holidays) can also be factored into the ‘negative contribution’ argument mentioned above for gambling debt.

Further to this, the betrayal of the act/s may increase the level of emotional angst between the parties and make coming to a settlement arrangement harder, longer and more costly.

In all cases, whether they involved addiction or not, it is prudent for individuals to consider whether or not a counsellor should be engaged to help process and navigate this turbulent time.

At Toomey Family Law, we believe the way lawyers and our legal system deal with these matters should be based on sensitivity, compassion and and with long-term benefits in mind.

We need a whole-person and whole-family approach to not just protect our children but also help people achieve long-term success over their afflictions.