One in five Australians aged 16 to 85 years (21% or 4.2 million people) experience a diagnosed mental disorder at some point in their life. Over 2 in 5 Australians aged 16 to 85 years (43.7% or 8.6 million people) will experience mental illness of some sort: Australian Bureau of Statistics 2021 Survey. Dealing with a stressful event such as separation can increase the risk of suffering from mental illness, which in turn can impact on a person’s capacity to function effectively, which in turn affects others around them, including their children. Given how prevalent mental health illness is in Australia, child custody and mental illness often go hand in hand.
It is common in family law proceedings for a parent to raise concerns that the other parent’s mental illness affects their capacity to care for their children.
What factors are relevant when making parenting orders?
The Court’s paramount consideration in making parenting orders, is the best interests of the child. In determining what orders are in a child’s best interests the Judges must focus primarily on the benefit to the children having a meaningful relationship with both of their parents, and the need to protect the children from physical and psychological harm or from being exposed to abuse, neglect or family violence.
In other words, a Judge is required to prioritise the children having a meaningful relationship with each parent, as long as the children are not exposed to a risk of harm in doing so.
Does Mental Health affect child custody?
There is no presumption that a parent who suffers from a mental health illness is not capable of being a fit and responsible parent and there is similarly no presumption that a parent with no mental health illness is a fit and responsible parent. Therefore, the fact that a parent suffers from a mental health issue is in and of itself not relevant to the court in family law proceedings, unless there is evidence to suggest that the parent’s mental health issue has resulted in harm to the children, or has the potential to negatively effect the children.
When there is a concern raised about a parent suffering from mental ill health, the Court is required to assess the level of risk by considering:
- Level of Risk: How likely the child is to experience neglect, abuse or family violence as a result of the parent’s mental health illness? and
- Seriousness of harm: What is the level of the harm that the children may suffer as a result.
The following factors may be relevant to assessing the level of risk that the mental health issue presents to the children:
- How does the mental health issue manifest itself?
- How have those behaviours previously impacted on the parent’s care of the children? (e.g. exposure of the children to neglect, aggression or family violence);
- Have the children been harmed as a result of the parent’s mental illness?
- Have there been other forms of impact on the children (e.g. have the children disclosed something or acted in a matter that is concerning);
- What has the parent who raised the concerns done historically to address these issues and protect the children?
- What have the care arrangements been historically in relation to the children when the parent has suffered mental ill health?
- Having regard to the above, what harmful outcome/risk could eventuate in the future?
- What is the probability of this outcome coming about?
- What risks are probable in this situation in the short, medium and long term?
- What are the factors that could increase or decrease the risk that is probable?
- What conditions are available which if deployed, could mitigate the risks that are probable?
If on an interim basis, there is evidence to satisfy the Court that a parent has a mental health illness and that the illness might actually result in the children being exposed to harm, the Court may makes orders requiring that parent to undergo a mental health assessment with a psychiatrist. The purpose of the psychiatric report is to confirm the parent’s mental health diagnosis and to assess the level of risk that the parent may pose to the children now and in the future.
Importantly, the presence of a mental health illness alone is not enough to justify that the parent undergo a mental health assessment. In many cases, the Court may assess that the level of risk posed by the parent is not serious enough to justify the necessity of an assessment. For example, where a parent manages the condition effectively by following treatment recommendations, e.g. with counselling and medication, and his/her parents provide him/her with support in relation to the children, the Court may find that despite that parent suffering a mental health illness, his/her children are unlikely to be harmed or neglected by him/her, which would negate the need for a mental health assessment.
If after preparation of a mental health assessment, the Court determines that the level of risk posed by a parent to the children is an unacceptable risk that the children will be exposed to physical, emotional or psychological harm in that parent’s care, the Court may do any of the following to reduce the level of risk to an acceptable level:
- limit the child’s time with that parent (e.g. allowing visits during the day but not overnight);
- change the way the child spends time with the parent (e.g. time may be supervised at a contact centre);
- place conditions on the child spending time with that parent (e.g. restraint on drinking alcohol when the children are present; time may be conditional on the parent receiving treatment from a mental health practitioner).
The court’s priority is to ensure that the children continue to have a meaningful relationship with both parents even where a parent is suffering from mental illness, provided that the proposed orders minimise any risk of harm to the children of spending time with the mentally ill parent. The Court will only deny a child of the opportunity to have a relationship with a parent if the risk of harm to that child outweighs the potential benefits to the child of that relationship. It is very rare for the court’s to make orders for no time where a parent is suffering from a mental health illness and such orders will only be made where in the children’s best interests.
Furlan & Furlan & Anor
In Furlan & Furlan & Anor [2018] FCCA 3157, the Mother had been diagnosed with bipolar affective disorder and attention deficit hyperactivity disorder and was following treatment recommendations. The Court ordered that the children live with the Mother and spend time with the Father.
The Court stated that the risk to the children was the possibility of psychological harm and neglect as a result of the Mother suffering a relapse in her mental health. Medical evidence was produced to the effect that people with bipolar disorder are likely to have relapses however it was difficult to predict when they would occur in each person. It was therefore difficult for the Court to determine what probability there was that the Mother would suffer a relapse in her mental health in the future. Other evidence was produced to the effect that it was not necessary that the Mother continue to live with her parents and that the Mother did not present as a risk to the children.
The Court concluded that given the Mother had agreed to continue to live with her parents for six months after the trial this would increase the likelihood that her parents would become aware if there was any decline in the Mother’s mental health. The Court made orders that subsequently, she live within a 10 kilometre radius of her parents home and continue to receive medical treatment with reports from her mental health practitioners.
With the above safeguards in place, the Court was satisfied that the possible risk to the children of a decline in the Mother’s mental health was acceptable when balanced with the benefit to the children of having an ongoing relationship with their Mother.
Theophane & Hunt
In Theophane & Hunt [2014] FamCA 1038, the Father was charged with 6 counts of rape of the Mother, however these charges were yet to be decided at trial. The Court found for the purposes of the family law proceedings, that non-consensual sexual intercourse had taken place.
The Mother had experienced a dissociative episode where she had lain in wait for the Father and stabbed him with a knife. She was subsequently sentenced to 18 months imprisonment for attempted murder but immediately released on 18 months probation.
The Mother sought no time orders, not because of any direct risk of harm to the children, but because of the likely impact on her parenting capacity of continued contact with the Father.
The Father sought orders that the child live with him and spend supervised time with the Mother due to an alleged risk to the child as a result of the Mother’s mental health issues, alleged risk of sexual harm from maternal family members and emotional harm due to her alleged poor boundary setting earlier in her life.
The Court analysed the case law in relation to unacceptable risk and noted the following questions were pertinent to analyse the asserted risk:
- What harmful outcome is potentially present in this situation?
- What is the probability of this outcome coming about?
- What risks are probable in this situation in the short, medium and long term?
- What are the factors that could increase or decrease the risk that is probable?
- What measures are available whose deployment could mitigate the risks that are probable?
The Court found that the Father displayed narcissistic personality traits and utilised anti-social behaviour to achieve his goals where his needs where in conflict with other people’s needs. This was a cause for concern for the child as she aged.
The Court held that if the Mother was required to continue to interact with the Father there was a substantial risk that she would attempt to kill herself, the father or both of them.
In relation to the level of risk the Mother posed for the child, the Court held that there was a risk of harm but that it was not a great risk nor unacceptable. The Court found that the impact on the child of losing her relationship with her mother, which was likely if she lived with the Father, would be profound and that on balance, the risks to the child were acceptable when balanced against the risks to the child’s psychological welfare, if the child lived with the Father and had no contact with the Mother.
Orders were made that the child live with the Mother and spend no time with the Father, with communication to be limited to cards on the child’s birthday and for Christmas day.
Want more information on child custody and mental illness?
Check out the following links on child custody and mental illness:
- Child Custody;
- Can parenting orders be changed?
- I want sole custody of my child;
- Do you want sole custody of your child? Here’s what not to do.
Questions on child custody and mental illness?
If you have questions or concerns in relation to child custody and mental illness contact us to book a reduced rate initial consultation with one of our Brisbane Family Lawyers, to have a confidential discussion about your individual circumstances.
