Effect of mental health in family law Parenting Orders: Can it impact the care of children?

Malcolm Gittoes-Caesar ||

Allegations of mental health often emerge in family law proceedings. It is more common in parenting proceedings, where one parent has concerns for the other parent’s care of the children due to the impact of mental health. However, it can also occur in property matters too, where a spouse’s mental health has affected their earning capacity, or where there is an issue of ‘wasting’ assets.

Courts have been at pains to point out that mental health is not relevant in proceedings, unless it has had an impact on one of the requirements that the Court is to consider. For example, should a parent suspect that the other parent has a serious mental illness (or the other parent has already been diagnosed), the Court will not take it into account unless there is evidence to suggest it has resulted in (or has to the potential to result in) an injury to the children or have an adverse impact on them.

The following factors may be relevant in making that determination:

  1. How does the alleged mental health issue manifest itself? (e.g. fits of aggression, depression, delusions, anxiety etc.)
  2. How have those behaviours impacted on the parent’s care of the children? ( i.e. has there been periods of neglect, over protectiveness, aggression or violence?)
  3. Has there been any injury to the children as a result of the illness?
  4. Have there been other demonstrated forms of impact (e.g. have the children said or acted in a manner that causes you concern?)
  5. What has the parent who has raised the concerns done historically to address these issues?
  6. What have the arrangements for the children been historically (e.g. has the person with the mental illness had extended periods of time unsupervised with the children?)

It is important to note that there is no legal presumption that a parent is incapable of being a fit and responsible parent by virtue of their mental illness, nor is there a presumption that a parent with no mental illness is considered to be capable of being a responsible parent.

The paramount consideration in any situation regarding parenting arrangements is that of the child’s best interests; therefore whether or not a parent has a mental illness will only be considered relevant if it is found to affect their capacity as a parent.

If it is found that a parent does in fact suffer from a mental illness which affects their capacity to adequately provide care and there is an unacceptable risk that the child will be exposed to physical, emotional or psychological harm, then the Court has power to either:

  1. Limit the children’s time with that parent;
  2. Change the way the children spend time with that parent (e.g. supervised time in a public place);
  3. Put conditions on the children spending time with that parent (conditional upon the parent receiving treatment.

Generally, the Courts attempt to ensure that children continue to have a meaningful relationship with both their parents, even those suffering from mental illness. However, if contact with a parent suffering from a mental illness does not promote the child’s welfare then the Court is likely to change parenting arrangements to ensure the child’s best interests are upheld.

If you are concerned about the care of your children or need assistance with Parenting Orders please contact:


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