NSW ex partner demanding a Hair Follicle Test but won't take test himself, he's already got full custody

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

James36

Member
6 January 2020
1
0
1
My missus split with her ex-boyfriend around 6 years ago, at the time their son was 4 years old & the mum wasn't in a position to accomodate the kid so he stayed living with his father.
About 12 months later the father took her to court to get full custody of their kid (which he did), at court he requested that the mother do a Hair Follicle Test to test for drugs which came back showing that she had weed in her system which is partly why he won the case and got full custody of their child, but for some reason the courts denied her requests that the father also do a Hair Follicle Test, now the mother seems to think that he didn't have to do a test because he had a top notch lawyer and she only had legal aid for the case as this is all she could afford at the time.
The courts gave the father full custody of the child but allowed the mother to have her son every 2nd weekend for the 2 days. Mother + Father have sort of got along for 6 years for the kids sake as long as she always done what he wanted her to (to a point). He's a very manipulative & controlling person towards her that's why she left him all those years ago, she's even to scared to tell the kids father about our relationship of 1.5 years fearing that he will stop her from seeing her son like he is threatening to do now.
Yesterday after she had dropped her (now 10 year old) son back home, the father rang her abusing her because he just found out she is pregnant (to me),
Now he's trying to make her life harder than it already is by demanding that she pass another Hair Follicle Test and he has refused to let her see her son again until she passes a new test. These tests are not cheap costing around $400 - $500 per test which we just can't afford at the moment as she had to stop working because of being pregnant and i am only on minimum wages.
Does she have to go ahead and do the Hair Follicle Test at her expense and can he demand her to do this or is it up to the courts to make her do this?
Can she demand that the father also does a Hair Follicle Test at the same time to prove that he isnt using drugs (as he also smokes weed)?
How would she go about requesting to the courts that he also does a Hair Follicle Test at the same time?
The mother is also under the impression that she can't make the father do a Hair Follicle Test because he didn't have to do one at their 1st court hearing?
Am i right when i tell her that she has every right not take a new Test unless ordered to do so by a judge and that she demand that the father also takes the same Hair Follicle Test as he wants the mother to take and that she should not do a new Test until he is also required to be tested?
ANY helpful advice or information on this matter will be greatly appreciated and we both send a big Thankyou (in advance) to everybody who can help us out

Merry Christmas & Happy New Year to all who read this post.
 

Tremaine

Well-Known Member
5 February 2019
172
30
514
Well, what's the point of him doing a hair follicle test? Is she hoping that will support her case for seeking full custody of their child? If so, proving he does drugs only proves they both do drugs, so then the Court is going to rely more on the other factors of the case, anyway, like the fact that the child has lived with his dad for the previous six years...

So, forget him doing a hair follicle test. If all she's proving is that he uses a low-grade drug like weed, the Court probably won't care about that anyway. I am also pretty confident that her own drug use would have been less integral to the first hearing than the fact that the child lived with dad after they broke up.

Now, dad requesting a hair follicle test and refusing access to the kid until she does a hair follicle test is outside of his authority, ie mum doesn't have to do a hair follicle test just because dad requested it. If dad refuses to facilitate the child's time with mum, and they have court orders that the child spend time with mum every second weekend, then dad would be in contravention of the orders. A parent stopping a child's time with the other parent is also one of the few contraventions that the Court takes very seriously.

In short:
  • Does she have to go ahead and do the Hair Follicle Test at her expense and can he demand her to do this or is it up to the courts to make her do this?

He can demand that she do a hair follicle test, but she does not have to do a hair follicle test unless the orders stipulate that she must do so at his request. Otherwise, only the court can order her to do a hair follicle test.

  • Can she demand that the father also does a Hair Follicle Test at the same time to prove that he isnt using drugs (as he also smokes weed)?

She can demand it, but he also does not have to do it.

  • How would she go about requesting to the courts that he also does a Hair Follicle Test at the same time?

File a new application for parenting orders that include this in the interim orders. What would be the point, though? What outcome would it aim to achieve?

  • The mother is also under the impression that she can't make the father do a Hair Follicle Test because he didn't have to do one at their 1st court hearing?

Again, she can demand it, but he doesn't have to do it. It's irrelevant that he wasn't ordered to do one at the first court hearing.

  • Am i right when i tell her that she has every right not take a new Test unless ordered to do so by a judge and that she demand that the father also takes the same Hair Follicle Test as he wants the mother to take and that she should not do a new Test until he is also required to be tested?

Yes, and no. She doesn't have to take a new test unless it's a) in their existing parenting orders, or b) ordered by the court. She can demand that the father complete a hair follicle test, but he doesn't have to comply, and finally, she really shouldn't do a new test at all, regardless of whether he agrees to do one as well.

So, what then?

If it were me, I'd politely refuse his request to complete a hair follicle test and explain that if he refuses to facilitate the child's time with mum, then he will be in contravention of the orders and she will be forced to take further action (that is, mediation, and if it fails, then an application to the Court for contravention orders).

Also, I really, really hope that a hair follicle test wouldn't show continued drug use while she's pregnant...