When you are separating, you will need to consider arrangements for your children. In determining what arrangements are appropriate, lawyers will often refer to ‘the best interests of the child’, as this is the paramount consideration for the court. Section 60CC of the Family Law Act 1975 (Cth) sets out how a court determines what is in a child’s best interests and includes factors such as what arrangements would promote the safety of a child or children.
Unfortunately, it is not uncommon for a parent to suffer from alcohol abuse or misuse. Whether this arose in the context of the separation or was an issue during the relationship, alcohol abuse and/or misuse give rise to safety concerns where that parent proposes to care for the children. If a parent is caring for a child under the influence of alcohol (or other substances), this can significantly impair their ability to respond to the child’s needs, including in the event of an emergency. A parent being under the influence of alcohol may also place children at risk of serious injury, for example, where the parent then drives with the children in the car whilst under the influence.
A parent with alcohol issues does not automatically result in that parent not having any relationship with the children; however, it is important to ensure that there are appropriate safety measures in place to protect the children from being exposed to harm resulting from that use.
When faced with a parent who struggles with alcohol use and/or misuse, a Court will likely assess the risk posed (including an assessment of the behaviour and consumption to date), and look at what, if any, protective regime can be put in place to address any alcohol use issues.
Examples of protective measures may include:
Orders restraining a parent from consuming alcohol for 24 hours prior to the children spending time with them and whilst the children are in their care.
To establish that the parent is not under the influence of alcohol, a parent may need to undertake blood alcohol content readings on a breathalyser and provide the results to the other parent prior to the children coming into their care. In the event the parent returns a blood alcohol reading higher than 0.00%, the children may not be made available.
Placing an ignition interlock device in the parent’s motor vehicle, to ensure that the motor vehicle is not operated whilst a parent is under the influence of alcohol.
To undertake testing, such as a carbohydrate-deficient transferrin test and/or liver function test.
To undergo a psychiatric assessment directed to alcohol dependency and/or alcohol use disorder.
When faced with the issue of what time children should spend with a parent who struggles with alcohol issues and/or misuse, the Court will ultimately make findings about any allegations and/or admissions that have been made; and make an assessment as to future risk of harm.
The Court is likely to consider whether the parent still consumes alcohol or other substances, and whether this consumption occurs in the context of that parent caring for the children. Where a parent has ceased alcohol consumption or use of substances, the Court will look at making orders to monitor and guard against a possible relapse into alcohol or substance use, to protect the children from any harm resulting from such a relapse.
If you would like advice about appropriate care arrangements or protective measures where alcohol use is an issue, please get in touch with us. Our specialist family lawyers here at R + M Law can guide and support you to put in place safeguards and arrangements to best suit your individual situation. To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or email info@rmfamilylaw.com.au, or get started now online.