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
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
How does the alleged mental health issue manifest itself? (e.g.
fits of aggression, depression, delusions, anxiety etc.)
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?)
Has there been any injury to the children as a result of the
Have there been other demonstrated forms of impact (e.g. have
the children said or acted in a manner that causes you
What has the parent who has raised the concerns done
historically to address these issues?
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
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
Limit the children's time with that parent;
Change the way the children spend time with that parent (e.g.
supervised time in a public place);
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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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