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Definition of "Under the Influence"

Discussion in 'Family Law Forum' started by Cally-anna, 17 November 2014.

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  1. Cally-anna

    Cally-anna Member

    17 November 2014
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    My husband has had an interim intervention order ( restraining order) placed on him by the police initially & then the magistrate continued it but for 12 months. All due to asking a question of the police who came & took what turned out to be a statement from me that ended with a situation that has not helped me one little bit (too much other stuff to go into).

    The order states that he must remain 200m from the home if he is "under the influence of alcohol". What exactly does that mean? Does it mean we can go out for dinner & have a glass or 2 of wine (he isn't drunk) and come home or is any amount of alcohol deemed under the influence?
  2. Sophea

    Sophea Well-Known Member

    16 April 2014
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    Hi Cally-anna,

    I'm not 100% sure on how it is determined with respect to intervention orders, but in Mair v Railway Passengers Assurance Co (1877) 37 LT 356, the judge considered the difficulty of determining the point where a person is "under the influence" of alcohol and it affects their mental faculties. He considered the requirement of being under the influence was "...satisfied when the influence of intoxicating liquor is found in point of fact to be such as to disturb the quiet and equable exercise of the intellectual faculties of the man who has taken the liquor.”

    Similarly in Sagacious Legal Pty Ltd v Westfarmers General Insurance (No 4) it was stated:

    The determination is one of fact and degree based on the evidence, including, particularly, the observations of those who saw the person at or close to the critical time. In evaluating those observations, it will be important to bear in mind that the effect of the intoxicating liquor on the behaviour of the person will vary depending on when he or she last drank alcohol and how much he or she had consumed. If the alcohol was only consumed just before the accident, there may not have been sufficient time for it then to have had any or any disturbing affect on the person, even though its affect would be evident a short time later.

    Therefore I am guessing that it will be a case by case basis and depend on the facts of the case. If your husband feels or you observe that he is affected by alcohol that he drank at dinner he should not go within 200 meters of the house. I suppose it is a matter of him only drinking what he knows will not have any effect on him for the purposes of being able to comply with the order if he goes near the house.

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