Alco­hol and Fam­i­ly Law

Last year, I wrote an arti­cle on cannabis use and its poten­tial impact on par­ent­ing mat­ters. I have recent­ly con­sid­ered some recent cas­es where alco­hol was raised as an issue in par­ent­ing pro­ceed­ings and com­ment as fol­lows (please note that the whole case should be read for a prop­er con­sid­er­a­tion of the oth­er fac­tors deter­min­ing the child/​children’s best interests):

Orders for test­ing for alco­hol con­sump­tion can be made in Court. Com­mon tests are as follows:

1. 1. Uri­nal­y­sis in a chain of cus­tody set­ting. A par­ty will typ­i­cal­ly have 24 hours to attend at a GP/​lab and pro­vide a sam­ple to test for alco­hol and drugs. The par­ty is observed while the sam­ple is pro­vid­ed to ensure the sam­ple is their own. (How­ev­er, alco­hol and drugs only stay in the urine for a short period).
2. 2. CDT test­ing. This will only show if a per­son has been con­sum­ing alco­hol at a high lev­el and at a high fre­quen­cy. A one off binge (or even a few day binge) will not ele­vate the result.
3. 3. Hair fol­li­cle test­ing. A col­lec­tor will super­vise the cut­ting of the per­son­’s hair (usu­al­ly 3 – 6cm) and test it for alcohol/​a range of drugs. This can test for alco­hol and drug use with­in the last few months.

Inter­im pro­ceed­ings, time sus­pend­ed completely

The child was 9 at the time of the deci­sion. Orders were made (on an inter­im basis only) that the child spend no time with the mother.

At the hear­ing, the moth­er reject­ed the alle­ga­tion that she was an alco­holic or that she had a prob­lem with alco­hol. She acknowl­edged that there were times when she con­sumed too much alco­hol but this was when the child was not with her. A report from a doc­tor con­sid­ered that the moth­er’s self-med­ica­tion with alco­hol was ​‘poten­tial­ly prob­lem­at­ic’. Hos­pi­tal records showed the moth­er had been admit­ted when her blood alco­hol lev­els were ele­vat­ed (well past the legal dri­ving lim­it). CDT test results were ele­vat­ed. On an inter­im basis, the judge accept­ed that the child had acute trau­mat­ic stress syndrome.

The judge stat­ed that at this stage of the pro­ceed­ings the Court must take a cau­tious approach. The judge was per­suad­ed that the risk to the child in spend­ing any time with the moth­er was unac­cept­able and super­vi­sion would not be ade­quate pro­tec­tion and made Orders to that effect.

[[Maid­en & Maid­en [2018] Fam­CA 371]]

Final pro­ceed­ings, Orders for time made 

In 2 cas­es in 2018 Orders were made for the moth­er to spend 5 nights a fort­night with the children. 

In the first it did not appear that there was con­sis­tent alco­hol use, although the moth­er con­ced­ed that an event occurred which was inap­pro­pri­ate and upset­ting for the chil­dren. Orders were made that the chil­dren spend time with the moth­er 5 nights a fort­night (con­sec­u­tive) and that the moth­er be restrained from con­sum­ing alco­hol caus­ing her to be above the legal dri­ving lim­it while the chil­dren were in her care.

The tri­al judge con­sid­ered these Orders min­imised the risk to the chil­dren of expo­sure to con­flict and to the moth­er’s, at times, errat­ic or impul­sive behaviour.

In the sec­ond it was agreed that the moth­er had a his­to­ry of alco­hol abuse and had con­tin­ued to drink but not to the extent of alco­hol abuse. There was a con­cern that the moth­er might relapse into alco­hol abuse.

Orders were made that the chil­dren spend time with the moth­er 5 nights a fort­night (3 nights in the first week and 2 nights in the sec­ond week) and that the moth­er be restrained from con­sum­ing alco­hol for a peri­od of 12 hours pri­or to and when the chil­dren are in her care.

The tri­al judge con­sid­ered that the time pro­vid­ed for the chil­dren to spend sub­stan­tial­ly more time with the moth­er than they cur­rent­ly did while not extend­ing the peri­ods for so long that they place her abil­i­ty to remain sober under strain.

[[Gre­sham & Gre­sham [2018] Fam­CA 286]] [[Plough­man & Plough­man [2017] Fam­CA 612]]

Final pro­ceed­ings, guil­lo­tine Orders sought

In this case the father had agreed to be restrained from con­sum­ing alco­hol to excess or stor­ing alco­hol in any room where the chil­dren are to sleep. How­ev­er, the moth­er sought that, in the event of a breach, the chil­dren’s time with the father would be reduced from equal time to day time only, 2 days a week.

At tri­al, the tri­al judge deter­mined that the ​“guil­lo­tine order” would apply in rela­tion to stor­age of alco­hol. He stat­ed that the con­di­tion was ​‘more objec­tive­ly ver­i­fi­able and would be breach­es the hus­band could more eas­i­ly demon­strate he has sub­se­quent­ly cor­rect­ed’. The tri­al judge declined to make the ​“guil­lo­tine order” with respect to the con­sump­tion of alco­hol to excess and stat­ed ​‘breach­es of con­di­tions of orders in rela­tion to those mat­ters are more appro­pri­ate­ly a mat­ter for an appli­ca­tion for con­tra­ven­tion. If the breach­es are extreme, the wife 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’.

[[Hearn & Wool­cott [2018] Fam­CA 486]]

If alco­hol is an issue in your par­ent­ing pro­ceed­ings con­tact a fam­i­ly lawyer ear­ly to work out how to resolve these issues ear­li­er rather than later.