Family Law, Alcohol Use Disorder and Parenting Arrangements

Introduction

Alcohol use disorder is quite often raised by one party in parenting action as a reason why the other party should have only supervised time with the child or children. Whilst the benefit of the child having a meaningful relationship with each parent is a primary consideration when the family courts are determining what parenting orders should be made, the other primary consideration (which carries greater weight) is protecting the child from physical or psychological harm from being subjected to or exposed to, abuse, neglect or violence.

Background

In the recent case of Kruger & Kruger [2018] FCCA 3485, before the Federal Circuit Court of Australia, Mother sought a variation of interim consent orders for the care arrangements for a child who was then three (3) years of age. The variations sought by the Mother included changes related to her allegations of alcohol use by the Father. The Father did not agree to the changes sought by the Mother relating to the time that the child spent with him or relating to her allegations of alcohol use.

The Mother sought that the time that the child spent with the Father on a supervised basis be reduced. This was because on the Mother’s case, as she was now working on a full time basis, the time provided for the child to spend with the Father during weekends impinged upon the time that the child could spend with the Mother. The Court declined to make a further interim order which would reduce the time that the child spent with the Father. The Court noted that the family report supported the view that the child has a loving and positive relationship with the Father. In view of the child ‘s age, the Court considered it important to encourage the child to have time with the Father, during the week as well as during weekends.

Court Analysis

The Mother in her application referred to the father’s alcohol use which formed the basis for the Mother to seek further Orders that:

a. the Father must obtain a breathalyser;
b. the Father undergo random alcohol and drug testing;
c. the Father’s motor vehicle be fitted with an interlock device;
d. the Father only be permitted to drive the vehicle to which the interlock device is fitted whilst the child was a passenger when driven by the Father; and,
e. the Father’s time with the child be suspended if he failed to comply with any of those provisions.

The Mother also raised comments by the family report writer which appeared to support that the Father lacked insight into his alcohol use. However, the Court took the view that no change was necessary to be made to the existing interim orders as they already addressed the Mother’s concern that the Father’s alcohol use placed the child at risk whilst in the Father’s care. In particular, the existing interim orders restrained the Father from alcohol use or any drug use for a period of 24 hours before commencing to spend any time with the child. The Court also took account of the fact that the Father’s time with the child was entirely supervised.

The Father had already agreed to orders by consent that he continue attending upon his psychologist. The Father also agreed that he authorise the psychologist to immediately contact the Mother and Father’s lawyers to inform them if he holds concerns regards the impact of the father’s alcohol use disorder upon his capacity to care for the child. As a result of that order, the Court stated that it did not consider it necessary that the Father undergo random alcohol and drug testing.

Orders

The Court therefore also stated that it would not make the orders sought by the Mother requiring the use of an interlock device or a restraint on the father’s driving any vehicle. The Court also declined to make any order regards suspending time.

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