Some people believe that in Family Law a parent with a mental health issue will be disqualified from spending time with their child. That is not the case. The paramount consideration in parenting matters is what is in the best interests of the children, which is having a meaningful relationship with both parents while minimising harm to the child.
Parents with mental health issues
Some parents may suffer from mental health issues including depression, chronic anxiety and schizophrenia. The spectrum of mental illness is vast and each case is treated differently as each individual’s circumstances and prognosis is unique. For some parents, mental illness may be genetic, but for others, their mental illness may be as a result of a relationship. The impact and behaviour of the other parent may have had a toxic and damaging effect upon their mental health due to years of emotional abuse.
Effectively, there is no legal presumption that a parent is deemed unfit because of a mental health issue. The court’s key consideration is what orders will be in the best interests of the child that will facilitate a meaningful relationship between both parents and the child. The court then considers if there is any risk of harm and how that harm can be minimised, such as through supervised contact or placing conditions on a parent, including no overnight stays.
Considering the above, if the parent has alcohol abuse issues, substance abuse issues, extreme mental health issues or other issues that impact upon their ability to parent, that parent may have restrictions placed on their time with their child. In other situations, it may not be appropriate for the child to have face to face contact with one parent as that parent is mentally unstable and their unpredictable behaviour poses a threat or risk to that child. The restrictions could be lifted after a certain period of time, once the person's mental health is managed.
Examples in practice
In the case of H, for the children’s protection and to uphold their best interests, a mother suffering from long standing mental health issues was only able to communicate with the children by telephone. This facilitated a relationship between the mother and the children but effectively removed the risk to the children that the mentally unstable parent presented if they interacted face to face.
In the case of M and M, there were concerns over the father’s ability to care for the children unsupervised. The father had attempted suicide and had sent suicide letters to his wife and daughter which had a traumatic impact upon the child. The father refused to receive treatment or take medication to assist his illness. The supervised contact remained in place as the father had not demonstrated an initiative to participate in treatment and manage his mental illness.
In summary, if a parent suffers a mental illness but seeks treatment and actively tries to improve themselves as a better parent, this will be seen favourably by the courts. However, each case is assessed on its individual circumstances. It is a misconception that parents with a mental illness will be automatically disregarded as a parent.
If you have further questions about parenting arrangements, please contact Katherine McCarthy at kmccarthy@franklaw.com.au.
This is not legal advice.
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