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Children and custody

Alcohol and family law in the courts

By August 20, 2018October 26th, 2021No Comments

Making parenting orders in family court depends on a judge being persuaded that the relevant children are safe and not at risk of harm, and being satisfied that the children’s parents have the capacity to properly care for the children without being affected by the misuse of alcohol or other drugs.  In fact, allegations of alcohol or drug abuse must be disclosed in the Notice of Risk document that is filed by both parties prior to commencing court proceedings in the courts.

A recent article in Mondaq has explored alcohol and family law and looks at how recent parenting cases involving alcohol and family law have played out in the courts.

The article outlines a number of family law cases heard this year involving alcohol use by a parent. The circumstances of each case involving alcohol and family law are unique and therefore the outcomes of the matters are also varied, ranging from suspension of time with the alcohol-misusing parent to orders to store alcohol away from children.

In the case of Maiden & Maiden, a mother’s time with her child was wholly suspended after a judge accepted, in interim proceedings, that a mother’s self-medication through the use of alcohol was “potentially problematic” and found the child suffered from acute traumatic stress syndrome, which persuaded the judge that the child was at risk of harm while in the care of the mother. Supervision was not considered adequate protection so the court ordered the mother should not spend any time with the child.

In another case, that of Gresham & Gresham, a mother was restrained from consuming alcohol to the extent that her blood alcohol level above the legal driving limit whilst she had the care of her children.  In this case the trial judge made orders that were believed to minimise the risk to the children of the mother’s “at times erratic or impulsive behaviour” attributed to her alcohol use.

In the case of Ploughman & Ploughman this year, the trial judge found the mother had a history of alcohol abuse and still drank, but presently not to the point of it being alcohol abuse.  The judge restrained the mother from consuming alcohol in the 12 hours prior to having her children in her care, and increased the time the children could spend with their mother, “while not extending the periods for so long that they place her ability to remain sober under strain”.

Alcohol and family law were also relevant in final proceedings in the matter of Hearn & Woolcott this year, where a father was restrained from consuming alcohol to excess, or from “storing alcohol in any room where the children are to sleep”. The judge applied a “guillotine order” on the issue of the storage of alcohol, which he argued was “objectively verifiable and would be breaches the [father] could more easily demonstrate he has subsequently corrected”.  (A guillotine order, also known as a springing or self-executing order, is a common case management order used in courts which is used to allow proceedings to be dismissed unless a certain party does a certain act within a certain time.)

However the judge did not make a guillotine order relating to the father’s alcohol consumption to excess, stating that breaches in relation to this would be best handled by a contravention application: “If the breaches are extreme, the [mother] could suspend time and rely upon the seriousness of the breach as a reasonable excuse against a contravention application and make an application in the meantime for a change of the orders”.

Although alcohol is a legal drug, where parental alcohol use is excessive and/or undermines the meaningful relationship between a parent and child, or creates a need to protect the child from physical or psychological harm, the courts will endeavour to make orders which are in the best interests of the child even if this means the suspension of time with the parent.

In cases where parties allege alcohol misuse is a factor in parenting capacity, court orders are often made for testing for alcohol consumption. The common tests used include urinalysis, which is typically also used to test for illicit drugs, CDT tests, which can show if alcohol has been used at high frequency and in large quantities, and hair follicle tests, which show usage of drugs and alcohol within the past few months. You may like to read our blog on drug testing and family law. You may also like to read our blog on how the courts view marijuana use by parents.

Source: Mondaq

Do you require legal advice regarding a parenting dispute or other family law matter, perhaps in which parental alcohol misuse may be an issue? Please contact Canberra family lawyers Cristina Huesch, Angela Li or Sharla Stevens here at Alliance Legal Services on (02) 6223 2400 for a no-obligation, cost-free first conference.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services


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