Each year, 1 in 5 Australians aged between 16 and 85 will experience a mental disorder, and 45% of us will experience a common mental illness during our life-time. Those undergoing a separation are even more likely to suffer from mental ill-health, most commonly depression and/or anxiety, especially if the separation causes financial hardship or lone parenthood.
Mental illness affects not just the person experiencing it, but also those around them, especially children. For example, studies have shown that parents suffering depression may be less supportive and responsive to their children, potentially resulting in lower quality attachment, poor emotional health, and social difficulties. In especially serious cases, particularly those involving psychosis and/or addiction, children may also experience neglect or even physical abuse.
Given the statistics, it is unsurprising that many parents involved in a family law dispute concerning children suffer from one form or another of mental illness and it is not uncommon for one parent to raise ‘mental health concerns’ about the other.
The Family Law Act requires Judges to consider a list of matters before deciding a child’s parenting arrangements, however the quality of a person’s mental health is not specifically identified as one of them. Rather, the law requires that Judges place primary emphasis on:
The benefit to children of having a meaningful relationship with both of their parents; and
The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In other words, Judges (and parents) are expected to ensure that children do not miss out on the benefits they get from a meaningful relationship with their parents, but not at the expense of a child’s safety.
When one parent raises concerns about the other’s mental health, the Court must first consider the level of risk by assessing:
How likely the child is to experience neglect, abuse or family violence as a result of the illness; and
How much physical or psychological harm they might suffer as a result.
In some cases, the Court will require a parent to undergo a mental health assessment with a psychologist or a psychiatrist. Before doing so, the Court will require evidence that shows an assessment is actually necessary to assess risk: it is not enough to simply tell the Court that a person has a mental illness – there needs to be at least some evidence that the illness might actually result in the children being exposed to abuse, neglect or family violence.
Having assessed the level of risk, the Court will then decide whether it is necessary to intervene and if so, what measures to take.
In many cases, the Court will be satisfied that the relevant risk is not serious enough to justify any intervention. For example, the Court might find that even though a mother suffers a serious illness, her children are unlikely to be neglected because she manages the condition effectively with counselling and medication, and her parents visit each day to help look after the children.
Where the level of risk is unacceptable, the Court will endeavour to reduce the risk to an acceptable level without interfering overly with the child’s parental relationships. There are many interventions available to the Court including simple prohibitions (such as not drinking alcohol while the children are present), allowing visits during the day but not overnight, allowing visits in public but not at home, or allowing visits provided some third party is present. The type of intervention chosen will match the circumstances surrounding the risk. For example, if the Court believes a parent is too unwell to ensure their children attend school, then the Court might make an Order that they spend time with that parent on weekends rather than school days (but may still allow lengthier visits over holidays).
In some cases it may be necessary for a parent to be supervised whenever they are with the children and in very rare situations, it may be too dangerous for the children to see a parent at all.
In any event, the Court will only deny a child a meaningful relationship with a parent if the risk of harm outweighs the possible benefits to the child from that relationship. Because Courts often reach different conclusions to parents about risk, it is never wise to deny your child access to the other parent on the basis of safety without seeking advice from a reputable family lawyer first.
Even the most experienced Judge may find it difficult to assess risk and/or manage it in a way that does not disproportionately interfere with a child’s parental relationships. To assist, the Court may appoint an Independent Children’s Lawyer (an “ICL”); these are experienced family lawyers who have completed special training to help parents and Judges achieve the best outcome for children in difficult cases.
In all disputes about children, it is important to seek professional advice before taking matters into your own hands. Robinson + McGuinness Family Lawyers can help you overcome even the most complicated family law matter and we are proud to have two Independent Children’s Lawyers as part of our team. Whether it is at Court, mediation, or simply by helping you correspond with your ex-partner, we will work together with you to identify and implement the right balance between keeping your child safe and allowing them to maintain a meaningful relationship with you and your former partner.
To make an appointment or obtain further information please contact us on (02) 6225 7040, by email info@rmfamilylaw.com.au, or get started online now by clicking here.