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Parenting orders and a parent’s mental health

By February 11, 2021February 23rd, 2024No Comments

Parent’s mental health: We sometimes have queries from clients concerned that because they have been diagnosed with or are being treated for a mental health issue, they may lose custody of their children. Alternatively, clients sometimes raise concerns about the other parent’s mental health and feel that this may be impacting on the children’s care; in this case they may feel they should ask a court to modify parenting arrangements. Can the mental health of a parent be relevant in the making of orders in court parenting proceedings? Let’s take a look at this sensitive and often fraught issue.

First, it’s important to know that there is no automatic ‘rule’ which says a parent cannot care for a child if the parent is suffering from a diagnosed mental health condition. Our courts are tasked with looking out for the best interests of a child, above all other considerations and unless the mental health of a parent is shown to affect the child’s best interests, the court will not necessarily take it into account. Just as there is no presumption that someone without a mental illness is capable of being a fit parent, there is likewise no presumption that someone with a mental illness will not be able to look after children.

All new parenting cases filed in the family courts must be accompanied by a notice of risk of abuse or family violence (whether or not risk is present), and while allegations of risk of harm due to a mental health issue may be made, the courts will not consider the mental health issue to be relevant unless evidence shows it has resulted, or may result, in an adverse impact on the children.

Our Family Law Act, in section 60CC, allows courts to take into account “any other fact or circumstance that the Court thinks is relevant” as well as “the capacity of each of the child’s parents…to provide for the needs of the child”. It is here that the courts are able to assess parental mental health where it may impact on a child’s best interests.

What the courts look at in relation to mental illnesses

The variables that come into play include whether there is a formal diagnosis, the type of mental health condition, its severity and symptoms, how the symptoms affect parenting capacity (if they do so at all), the treatment options available, the willingness of the sufferer to seek help and adhere to treatment regimes, and whether the treatment is effective.

In terms of symptoms and effect on parenting capacity, the courts will consider how the illness manifests in behaviours (for example, aggression, depression, delusions, self-medication and substance abuse, anxiety, etc), how the behaviours might impact on the parent’s care of the child (for example, leading to neglect, being prone to anger and violence or overprotectiveness, or requiring frequent hospital stays, etc), whether there has been injury to the child, or if there have been any other demonstrated forms of impact (for example, if the children have said anything or acted in a way that causes concern).

If a parent’s mental health issues demonstrably create risk to a child’s safety, this will most likely influence a court’s child custody decision—more on this below.

Past mental health issues

If someone has suffered an episode of a mental illness that has been effectively treated and the person no longer exhibits symptoms of the illness, the courts may not find it relevant now. For example, a woman who has suffered Post-Natal Depression (PND) in the past will not necessarily have this count against her now, particularly if she has been treated, the PND is in the past, and the impact on her parenting now is neutralised.

Currently being treated/managed

Similarly, some parents are taking appropriate medication and having therapy to assist with a condition and are managing this well. There should not be a stigma to taking appropriate self-care, nor should a parent worry that their children will be taken away from them for seeking help with and managing a condition.

If you are the parent alleging the other parent has a mental illness placing the children at risk

Courts will also look at the parent raising the concerns and how they have behaved in the past in relation to the mentally ill parent. For example, consider the case of a parent who alleges the other’s mental health puts the children at risk. The court will consider: were the children frequently left in the sole care of the ‘sick’ parent during the relationship? Are these concerns only raised now? This can influence the alleging parent’s credibility. Contrast this to a parent who has kept it all together, caring for the ‘sick’ parent during the relationship, managing the children, ensuring that the ‘sick’ parent was never alone with the kids during the relationship, or if they were, that all other stressors were minimised. In such case, the relationship breakdown may be shown to put the children at real risk of harm in future, as the ‘sick’ parent cannot cope with single parenting with a mental health condition.

Because claims that a parent has a mental health condition are quite common during parenting proceedings, a parent raising concerns must provide the court with substantive, objective evidence of concerning behaviours rather than mere suspicions or general claims.

Personality disorders

Personality disorders are regarded as differing slightly from other mental health illnesses like depression as they may be less episodic and rather are lifelong conditions (although the distinction is somewhat controversial). In particular, personality disorders are often seen in high-conflict divorce or child custody disputes. Increasingly, lawyers and courts are more educated to recognise parties who suffer from these disorders, and can spot when a disorder is fuelling litigation. People with certain personality disorders, for example, are masters at making false statements, and courts may view their claims with due caution. If a party has a diagnosed personality disorder, other aspects of a case may also change. For instance, in a matter involving children, the court may appoint an Independent Children’s Lawyer.

If you are a parent who has a mental health condition

The most important thing is to focus on the effective management of your mental health condition. Your medical team can likely provide an affidavit to the court confirming your diagnosis, how long you have been in treatment, your treatment regime, observations on your management of the illness, and their professional assessment on the issue. When therapy and medications are successful at keeping symptoms at bay and a parent is proactively managing their condition, courts usually respond more favourably to that parent.

How the court responds if there is an alleged risk of harm

A court may make orders for psychological evaluations to better make decisions regarding who should have parenting responsibilities for children and to understand family dynamics to be considered.

If a court determines that a parent’s mental health does provide an unacceptable risk of exposing a child to physical, emotional or psychological harm, then the court can either:

  • limit the child’s time with that parent;
  • change the way the children spend time with that parent (ie supervised time); or
  • place conditions on the time spent (ie conditional upon the parent receiving treatment or abstaining from alcohol or substance use);
  • in some cases, if the parent isn’t able to maintain a stable living situation or make appropriate life decisions, change primary custody.  
  • in some cases, there may already be existing orders, but due to a drastic change in a party’s mental health status, these need to be modified.

Ultimately, the court will change parenting arrangements in accordance with what is found to be in the child’s best interests.

How else might mental health issues affect outcomes?

In one relocation case, a mother’s mental health was highly relevant because it was found that if she was not permitted to relocate with her children to her hometown where she had more family support, her depression would likely worsen to the point where it would negatively impact on her parenting capacity. In the case, the father had not argued that custody should be switched to him due to her depressive disorder, only that she should not be permitted to move away with the children.

And in another case, a depressed mother was not compelled to return with her child to Germany to defend custody proceedings there, because our courts concluded it was in the child’s best interest that the mother remained in Australia where her mental health had better prospects. The judge said: “I am satisfied … it is not possible to fashion safeguards which would adequately protect the mother from a major depressive episode and ultimately from the effects of a major deterioration in her mental health.”

The intersection of mental health and family law is complex. Alliance Family Law staff are not qualified to give a mental health diagnosis, nor to treat people with therapeutic or other interventions. Our role is strictly limited to providing legal advice. However, our lawyers make a point of attending seminars run by psychologists, psychiatrists and other mental health professionals to learn how to run family law cases effectively where spouses have diagnosed or potential mental health conditions that may be relevant in either parenting or property cases.

If you would like family law advice and mental health is a relevant factor, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.

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