Mental Illness and Parenting Orders

In child custody matters, sometimes one parent is concerned the other parent’s mental illness will negatively affect the wellbeing of their child. Parenting orders are frequently used when a parent’s mental illness reduces their capacity to take proper care of a child.

Parenting orders

Parenting orders cover issues such as:

• where a child is to live;
• the nature of contact the child can have with their parents;
• the allocation of parental responsibility;
• how the child is to communicate with the non-residential parent;
• other aspects of the care, welfare and development of the child.

A parenting order can be sought by:

• either or both of the child’s parents;
• the child;
• a grandparent; or
• any other person involved in the care, welfare or development of the child.

Mental illness

A court will not issue a parenting order solely because a parent has a mental illness. It will need to determine whether a parent’s mental illness affects that parent’s capacity to be a responsible parent. In extreme cases only will the court make a parenting order that denies a child all contact with a parent.

The court’s paramount consideration is the best interests of the child. This is underlined by the benefit to children of having a meaningful relationship with both parents, and the need to protect children from physical or psychological harm.

When one parent raises concerns about the other parent’s mental illness, the court must assess the level of risk by looking at the likelihood of the child experiencing neglect, abuse or violence as a result of the illness, and how much harm they might suffer as a result. If the court is satisfied there is credible evidence of a mental illness, it can order a mental health assessment. The court will then decide whether intervention is necessary. When a parent manages a condition effectively with counselling and medication, intervention may not be required. Where the level of risk is unacceptable, the court has the power to either:

• limit the child’s time with that parent;
• change the way the child spends time with the parent;
• place conditions on the child spending time with that parent (such as the parent receiving treatment)

The court can also appoint an Independent Children’s Lawyer to advise on the best approach.

Recovery

If a parenting order is made on account of a parent’s mental illness and the parent later recovers, they may be able to apply to have the order varied or set aside. The court must be satisfied there has been a “significant change in circumstances” to lift a restriction. Some orders will require a parent to undergo psychological therapy before a court will consider amending an order.

Cases

The cases below illustrate how thoroughly the courts will weigh up the child’s right to a relationship with a parent with the risk of harm to the child, as well as the high threshold to be met for a court to make an order for a parent to have no contact with a child.

Furlan & Furlan & Anor [2018]

A mother had been diagnosed with Bipolar Affective Disorder and Attention Deficit/Hyperactivity Disorder, and was medicated willingly. The court granted an order sought by the mother and the Independent Children’s Lawyer that the children live predominantly with the mother.

The court stated the risk to the children was the possibility of neglect and psychological harm if the mother suffered a relapse of her conditions. Medical evidence showed relapses were likely in people with bipolar disorder but it was difficult to predict when they would occur in a particular individual. The court also considered the fact the mother had agreed to continue living with her parents for six months after the trial, which it concluded would increase the likelihood of her parents becoming aware if there was a decline in her mental health.

The court was satisfied the parenting orders were appropriate: that the mother live with her parents for six months, that she then live within 10 kilometres of her parents’ home, and that she continue her medical treatment with reports from practitioners.

U & U (1993)

A mother was awarded custody of a couple’s two children. The father alleged the mother was unfit on the basis of her alcoholism and mental illness. The judge concluded the likelihood of recurrence of a psychiatric episode in the mother was not great and her condition was unlikely to substantially impair her parenting capacity. The father appealed on several grounds, one of which was that the judge wrongly preferred the mother because she suffered from alcoholism and mental illness when he was free of any such problems. The decision was upheld.

W & H (1995)

A Family Court Counsellor and consultant psychiatrist gave evidence a father suffered from severe forms of personality disorder, including inappropriate sexualised play with a child. The judge determined the risk of harm to the child was too great and ordered the father have no contact with his children.

Pourmoayedi & Hedayatian (2007)

A court ordered a child live with her father and there be no contact between the mother and child. The mother had displayed disturbing behaviour and had been scheduled several times, with the child terrified of her. Several years later, the mother challenged the order. A court-ordered psychiatric assessment opined that the mother “has a complex psychiatric history with a combination of recurrent psychiatric episode and a fundamental personality disorder… there is also a consistent pattern of intimidation and harassment, at times stalking behaviour”. The judge accepted the psychiatrist’s evidence that it was “highly unlikely there would be any alteration to the mother’s behaviour pattern and it has been resistant to psychiatric intervention”. As a consequence, the judge ordered the child should live with the father, he should have sole parental responsibility for the child, and there should be no contact between the mother and child. The judge also ordered that the father enrol the child in a government-run course for children of parents with a mental illness and ensure the child participated.

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