Australia: Alcohol and family law parenting proceedings

Last Updated: 13 August 2018
Article by Sherlene Heng

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. 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. 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. 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.


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]]


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]]


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.

For further information please contact:

Sherlene Heng, Senior Associate
Phone: +61 2 9233 5544

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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