Alcohol, Child Custody and Parenting

Alcohol Use, Misuse and Treatment

The consumption of alcohol is widespread within Australia and associated with many social and cultural activities, it is legal in Australia for persons over the age of 18 and it is widely accepted. When consumed, alcohol produces a number of central nervous system depressant effects. Although Australians now drink less alcohol per person per year than they did 50 years ago, they still drink more than the OECD average. Many drinkers consume alcohol responsibly however, a substantial proportion of drinkers consume alcohol at an excessive level and in doing so increase their risk of alcohol-related harm.

According to the Australian Institute of Health and Welfare:

  • 79% adults consumed alcohol in 2019.

  • 34% of clients sought treatment for alcohol as a principal drug of concern in 2019-20, the most common principal drug of concern.

  • More than 1 in 4 recent risky drinkers reported recent use of cannabis.

  • Around 1 in 5 reported that they were also daily smokers.

Treatment type:

  • The most common treatment type was counselling (40% of closed treatment episodes); followed by assessment only (17.5%) and withdrawal management (15.9%)—this was consistent across all age groups.

  • The median treatment length for closed treatment episodes where alcohol was the principal drug of concern was 26 days.

  • Over the 5 years to 2018–19, counselling, withdrawal management, and assessment only have remained the most common main treatment types for closed treatment episodes where alcohol was the principal drug of concern.

Legal Implications of Alcohol Use in Parenting Matters

Where alcohol consumption is at a normal level and poses no risk of harm to the children or other parent, it is unlikely that the mere fact of alcohol being consumed would, on its own, lead a family court to draw any adverse conclusions as to that parent’s parenting capacity. Where there are allegations of alcohol misuse then a family court must assess the level of risk.

A family law court is required to consider what is in the “best interests of the child” when making decisions about parenting. This is done by reference to section 60CC of the Family Law Act 1975 (Cth). The court will weigh up the benefit of a child having a meaningful relationship with each parent with the need to protect the child from physical or psychological harm. Each matter is evaluated on its own merits however, habitual and continual drug or alcohol abuse is historically considered by the courts to pose a risk of harm to the child. This will have serious implications for not only the amount of time that a parent will get to spend with the child, but also on the issue of parental responsibility.

For example, in the matter of Mashman & Lockwood [2009] FMCAfam 1171  the father was granted sole parental responsibility and custody (live with) due to the mother’s regular abuse of alcohol and nitrazepam, where the court stated, “it would simply be dangerous for the child for the mother to be left in charge”. The court made interim orders which were expected to be in place for 12 months and stated:

I do not have a crystal ball but I would hope that these proceedings and my Reasons for Judgment provide a very clear “wake-up call” to the mother that she needs to get her life in proper order if she wants to have a fulfilling and meaningful relationship with her son. In order to do that she needs to take control of her dependence upon nitrazepam and her consumption of alcohol.

Mitigating the Risk of Harm

When faced with a parenting matter involving accusations of alcohol abuse or misuse, a family court will be most concerned to protect the child from the risk of harm. This may be achieved in numerous ways including:

  • by granting the other parent sole parental responsibility;

  • by not allowing the parent to have any contact with the child other than perhaps supervised contact and/or telephone contact;

  • by reducing or suspending time with the child;

  • by requiring the parent to undergo regular testing for excess alcohol consumption;

  • by requiring the parent to install an alcohol monitoring device in their car or perform a breathalyser test at changeover;

  • by ordering the parent not to consume alcohol for a period of time prior to, and during, any time spent with the child;

  • any other order which the court feels is appropriate in the circumstances.

For example, in the matter of Sebastian (No. 3) [2012] FamCA 707 an interim order was made that the mother install an alcohol monitoring system in her home and undertake a breath test before driving the children. The mother claimed she had abstained for 14 months but did not deny her past excessive drinking.

The parent affected by alcohol use disorder is advised to be pro-active in accessing treatment, rehabilitation and ongoing support services. It is better to take these actions as soon as possible rather than waiting for the court to order them. Additionally, an undertaking may be given to the other parent that, “I will not consume alcohol to excess or take illicit drugs.” The parent might also offer to voluntarily undergo a breathalyser test at changeover.

It is important to understand that a family law court is likely to exercise some caution where allegations of alcohol misuse have been made, from the time that court proceedings are issued, it may be 12 to 18 months (or perhaps more) before final orders are likely to be made, this time gives the parent suffering from alcohol use disorder time to access treatment and demonstrate to the court and the other parent that they are no longer at risk of relapse and therefore there is no longer any risk of harm to the child.


Where there are allegations of risk associated with alcohol abuse or misuse, a family law court must proceed with care and put in place strategies to reduce and manage any risk to the child on an interim basis until there is an opportunity to test the allegations. In time the fullness of the situation will become known to the court and final orders will be made. At all stages of the process, the courts must give greater weight to the need to protect a child from harm than the consideration of a child having a meaningful relationship with both parents, however the ultimate goal is to strike a balance between the competing factors and arrive at a decision that is in the best interests of the child.