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Family Law in Canberra – Parenting orders and mental health

By February 18, 2015No Comments

Can the mental health of a parent be relevant in the making of parenting orders?

In parenting proceedings, a parent sometimes expresses concerns about the other parent’s mental health and how this may impact on the care of the children.

However, unless the mental health of a parent has an impact on one of the requirements the Court is to consider when making parenting orders, the Court will not take it into account. For example, a woman suffering post-natal depression 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 minimal.

Allegations of risk of harm due to the mental health issue of a parent might be made, but the Court will not consider mental health of a parent to be relevant, unless there is evidence to show it has resulted in an adverse impact or injury to the children. Many parents take appropriate medication to assist with a number of conditions and manage this well. There should not be a stigma to taking appropriate self-care, nor should a parent worry that their children will be taken off them for managing a condition.

The Court takes the following factors into consideration:

– how the mental illness manifests itself in behaviours (eg aggression, depression, delusions, anxiety etc),

– whether such behaviours impact on the parent’s care of the child (eg neglect, overprotectiveness, aggression or violence),

– whether there has been any injury to the child,

-if there have been any other demonstrated forms of impact (for example, if the children have said or acted in a way that causes concern), and

– what has the parent raising the concerns done in the past in relation to such behaviours.  

Consider the case of a parent who alleges the other’s mental health puts the children at risk? Were the children frequently in the sole care of the ‘sick’ parent during the relationship? Are these concerns only raised now? They may not have much credibility in that case.

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, 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.

As always, the Court’s ultimate consideration is that of the child’s best interests—and mental health will only be relevant if found to affect the parent’s capacity to parent.

Just as there is no presumption that someone without mental illness is capable of being a fit parent, there is likewise no presumption that someone with mental illness will not be able to look after children.

If however, a Court does determine that a parent’s mental health provides 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, or place conditions on the time spent (ie conditional upon the parent receiving treatment). 

If contact with a parent with mental health issues is found to threaten the child’s welfare then the Court is likely to change parenting arrangements in line with what is regarded as “the child’s best interests”.

Note that from 12 January 2015, all new  parenting cases filed in court must be accompanied by the amended notice of risk of abuse or family violence, whether or not there is such a risk.

Do you need assistance with parenting orders?  Please contact Alliance Family Law to discuss your particular situation.


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