Imagine going through a separation while struggling with anxiety or depression. Unfortunately, this is a reality for many Australians. Statistics show that approximately two in five Australians aged between 16 to 24 experienced a mental disorder such as depression and anxiety lasting between 2020 and 2022, and 42.9% of individuals aged between 16 to 85 will grapple with a mental disorder during their lifetime.
Family breakdown and separation significantly contribute to poor mental health, especially when resulting in financial strain or single parenthood.
The impact of mental illness extends beyond the individual to those in their immediate circle, particularly their children, leading to attachment issues, emotional instability, and social/behavioural challenges. Consequently, mental health is frequently raised as a risk factor in family law cases before the court.
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Considerations Under the Family Law Act
The Family Law Act requires judges to regard the best interests of the child as the paramount consideration when deciding what orders to make in a parenting case. While mental health isn’t explicitly listed, judges are required to consider:
- What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child.
- Any views expressed by the child.
- The developmental, psychological, emotional and cultural needs of the child.
- The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs.
- The benefit to the child of being able to have a relationship with the child’s parents and other significant people, where it is safe to do so.
- Anything else that is relevant to the particular circumstances of the child.
Poor mental health is not only relevant to safety considerations, but also an important part of any assessment of the child’s developmental, psychological and emotional needs, and the capacity of the child’s parents to meet those needs.
However, the new Family Law Act amendments emphasise the child’s need for a relationship with both parents “where it is safe to do so.” This means that courts will prioritise maintaining connections whenever possible.
Risk Assessment and Court Considerations
In cases where one parent alleges that the other’s mental health condition amounts to a safety issue, the Court must assess the level of risk by considering the likelihood and seriousness of harm arising from that condition.
This risk assessment is often informed by an independent report from a court-appointed expert, usually a psychiatrist.
Once the risk assessment is completed, the court will consider whether the risks can be appropriately mitigated to ensure it is safe for the child to spend time or communicate with the relevant parent.
In especially serious cases, it may be deemed too unsafe for the child to have any type of ongoing relationship with the relevant parent, leading to court orders preventing that parent from having any contact with their child.
Fortunately, it is often possible to manage the risk without completely severing the parental relationship by imposing requirements for supervision or prohibitions on certain behaviours.
Frequently Asked Questions (FAQs)
How do the 2024 amendments to the Family Law Act affect mental health considerations in parenting cases?
The 2024 amendments to the Family Law Act emphasise the best interests of the child, including considering the mental health of parents as part of assessing safety and developmental needs.
This means judges will take into account the mental health of parents more rigorously when making decisions about parenting arrangements.
Can a parent's mental health condition result in them losing custody of their child?
In extreme cases, if a parent’s mental health condition poses a serious risk to the child’s safety or well-being, the court may order that the parent has no contact with the child.
However, often the court will try to manage risks through supervised visitation or other measures that allow the parent to maintain a relationship with the child, provided it is safe.
What kind of support can the court offer to parents with mental health issues?
The court can appoint independent experts, such as psychiatrists, to assess the situation and provide reports. The court may also order counselling, therapy, or parenting programs to support the parent’s mental health and improve their parenting capacity.
How can parents prove they are managing their mental health effectively in court?
Parents can demonstrate effective management of their mental health through regular therapy sessions, medication compliance, and positive reports from mental health professionals.
Consistent, stable behaviour and the ability to provide a safe and nurturing environment for the child are crucial.
What steps should a parent take if they believe the other parent's mental health is impacting their child's safety?
If a parent believes the other parent’s mental health condition is impacting their child’s safety, they should document any concerning behaviour and seek legal advice immediately.
They can request a court-ordered risk assessment and advocate for measures to protect the child’s well-being, which may include supervised visitation or other safety arrangements.
Seeking Legal Advice
Given the complexities involved, it’s crucial for parents to seek legal advice before making decisions that could impact their child’s best interests.
BWJ Law offers expert guidance and support to navigate even the most challenging family law matters. Whether through mediation, legal proceedings, or communication with the other parent, we’re committed to helping you protect your child’s best interests.
Contact us today for a confidential consultation.
