The rise in prescriptions for medical cannabis can pose significant challenges in parenting proceedings for whilst the prescription may make it legal to consume cannabis it doesn’t negate the possible impact upon that parent’s conduct and how that may affect his/her ability to care for the children. 

In Zakariya & Rana [2026] FedCFamC1A 75, His Honour, Riethmuller J, heard an appeal by the father from the decision of the trial Judge in Rana & Zakariya [2025] FedCFamC2F 1565, relating to the parenting arrangements for the three children of the parties, aged 14, 12 and nine years at the time of the appeal hearing. The father was prescribed medical cannabis to deal with diagnosed conditions of chronic pain, insomnia, anxiety and depression. 

At trial the father was self-represented and, pursuant to a section 102NA5 Order, could not cross-examine the mother. He also chose not to enter the witness box and accordingly the trial Judge had only the mother’s Affidavit evidence, and the evidence of the family report writer who was cross examined by both the father and the mother’s counsel. This essentially meant that the mother’s evidence was unchallenged, save for an allegation of a conviction against the father which was disproven through subpoenaed evidence. 

The parties were aged 37 and 36 respectively and had been separated since August 2018, when all of the children were very young. There had been Apprehended Violence Orders made against both the father and his current partner in 2018 and 2019. Consent Orders made in September 2018 provided for the children to spend time with the father for eight hours each Saturday, facilitated by the grandparents. Subsequent to that the father was arrested in relation to drug charges and between June 2020 and June 2023 he was convicted of multiple offences including, but not limited to, supplying a prohibited drug, possessing a prohibited weapon and other firearms offences, driving with illicit drug present in his blood and driving whilst suspended. 

The Orders made by the trial Judge were in line with the recommendations of the family consultant and provided for a gradual re-introduction of the father to the children, after he had provided clear hair follicle drug screen tests. That time was to be supervised initially, gradually increasing to unsupervised and then overnight time. 

The father did not cavil with the majority of the orders, primarily he took issue with the requirement for the hair follicle testing and a few other ancillary Orders. However, the father also sought to adduce further evidence on appeal, being evidence going to the underlying use of cannabis and its impact. That evidence was not before the trial Judge and the father had declined to be cross examined, which may have enabled him to provide some evidence in that regard, and accordingly his application to adduce further evidence was dismissed. The father also sought to adduce further evidence as to alleged non-compliance by the mother which could be dealt with by way of enforcement in the substantive proceedings. 

The father’s Notice of Appeal had been poorly drafted as he had been self-represented in doing so, only retaining counsel via a direct brief for the appeal hearing. His Honour allowed a lot of leniency in that regard in essentially ‘interpreting’ what the father meant to be his grounds of appeal and dealt with those as follows: 

Ground 1 related to the changeover arrangements however, they were in fact the Orders sought by the father at trial and accordingly, this ground was refused. 

Grounds 2 and 3 sought a reduction in the requirement for clear hair follicle testing from three to two. The father’s argument was that if he were to cease using medicinal cannabis it would pose a greater risk to his parenting capacity, as his symptoms would then be unmanaged.  This was not raised with the trial Judge and his conclusions were therefore with reason. 

Ground 4 related to the changeover arrangements providing for that to occur at school on occasions being inconsistent with an injunction preventing the father from, inter alia, entering the school grounds. Further, the father argued that this Order meant that he could not attend school events. 

His Honour found that the first prong of this argument could be satisfied by amending the Orders, pursuant to the slip rule, such that it would be an exception to attend the school for changeover. The second prong, however, was an issue considered by the Trial Judge who found that it would be beneficial for the parties to have minimal contact and accordingly this ground was dismissed. 

Ground 5 sought a discharge of the injunction preventing the father from approaching or speaking to the mother at any changeover. The father argued that the parties ought to be able to communicate directly with each other given there was no current AVO. His Honour found that the trial Judge had considered the evidence and that such an Order was within discretion. This ground was therefore dismissed.  

Grounds 6 and 7 related to Orders permitting the mother to travel with the children outside of Australia with notification being made to the father or requiring his consent. The father sought to amend those Orders such that for travel of less than 30 days the mother did not require the father’s consent but would need to notify him via the OurFamilyWizard app and for more than 30 days she would require his consent. The father’s argument was that there was a risk that the mother would not return the children. 

There was no evidence before the trial Judge that the mother was a flight risk and it was evident that consideration had been given to relevant factors such as the history of family violence, that the mother had been the children’s primary carer since birth, that it was in the best interests of the children for the mother to have sole decision-making responsibility. His Honour, Riethmuller J, also noted that there was a possibility that the time between the father and the children may never progress to regular weekend time as a result of his use of cannabis. This ground was also dismissed. 

Notwithstanding that the respondent mother was in receipt of a grant of legal aid, His Honour considered that as the appellant had been wholly unsuccessful it was appropriate to order that he pay the respondent’s costs, fixed at the legal aid funding of $5,772.80.