FATHER REFUSES TO UNDERGO HAIR FOLLICLE TEST

Birk & Farwell [2020] FCCA 2732 (2 October 2020)  

This case involves the applicant-father seeking for property relief and an alteration of the living arrangements for his two children. The mother seeks for court order that the father undergo hair follicle test to because of the father’s alleged illicit drug and alcohol use 

Facts:  

The Applicant De Facto Husband (Applicant), issued proceedings seeking property relief on 19 December 2019, filed an amended application for final orders on 14 May 2020 that particularized the property relief he sought and sought an alteration of the living arrangements for the two children.  

The parties had initially agreed (or acquiesced) that the children should be in the care of their father for five nights each fortnight and the remaining time with the Respondent.  The Applicant's application, raised on 14 May 2020, was to change that arrangement to a different constellation.  

The Respondent alleges that the Applicant has frequently cancelled his time that had been agreed to have with the children and asked the court to infer that this maybe because of his alleged illicit drug abuse prevented such contact or alternatively would cause it to be discovered.   

For this reason, the respondent asserted that the applicant must undergo the hair follicle test. The applicant however requests that the hair follicle test should not be made since: (a) he denied the allegations of taking illicit drugs or abusing pain medication or alcohol; (b) that on the evidence before the court there was not a proper basis for the testing in the circumstances where testing was intrusive;  

Issue: Should the court subject the applicant to a hair follicle test?  

Law:  

• S60CC (2) (b) - The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.  

Analysis:  

The court finds that it is necessary to balance intrusion into the Applicant's life that the hair follicle test represents and the fact that he would be ordered to undertake it upon it being pressed by his former spouse.  It is a serious matter and not to be ordered, against the will of a party lightly.  

The court must balance the significant harm that may potentially fall to the children if unknown to the court and the parties’, one of the parents caring for the children is suffering the significant disadvantage of an illicit drug or pain medication or alcohol abuse. Balancing all these matters I have determined that the parties should undertake the hair follicle test in regard to drug and alcohol testing.  

However, it may well be that the Applicant is right and it turns out there was no need for this test.  In those circumstances I determine that he should undertake a test and as soon as practical at an appropriate facility in supervised circumstances and the parties can review the situation from that test.  If the test is “clean” it may be the Respondent could not press for it to be undertaken again.  If it is not “clean” that would speak of the need for regular testing.  

Conclusion:  Both parties should undertake drug and alcohol hair follicle test at the respondent’s expense. 

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