In Australia, approximately 43% of adults have experienced a mental disorder. This suggests that many parents are experiencing challenging mental health while caring for their children. If a family is involved in a parenting dispute before the Federal Circuit and Family Court of Australia (or the Family Court of Western Australia) the issue of mental health can influence the outcome of the case. As the best interests of children are the paramount consideration in any parenting matter, the court must consider how the mental health challenges of a parent impact on their ability to ensure their children’s safety and well-being. This page deals with mental health and parenting orders.
Mental health and best interests of the child
An application for parenting orders in Australia can be made by either parent, the child themselves, a grandparent, or any other person involved in the welfare of a child. Parenting orders cover matters such as where the child will reside, allocation of parental responsibility, contact and communication between parent and child, and other aspects of the child’s care and development. In all parenting matters, the court’s paramount concern is simply what is best for the child. With the 2024 amendments to the Family Law Act 1975, the best interests of the child have been elevated to become the paramount consideration of the court, over and above the benefit of the child having a relationship with both parents.
In a parenting matter, a parent’s mental health is relevant in so far as it impacts on their ability to care for their child. It is typically the other parent who raises concerns over a parent’s mental health, often as part of an application to secure “full custody” of a child. It is important to know that there is no presumption in family law that a parent with a mental health condition is unable to care for their child. However, the court may limit the time a child spends with a parent struggling with a mental health condition if that is in the child’s overall best interests.
Factors when considering mental health and parenting orders
The court will not be persuaded to limit contact simply because a parent has a diagnosed mental health condition. Rather, the court must receive proof that the mental illness significantly reduces the individual’s ability to parent. The court determines whether the child is experiencing harm because of neglect or abuse as a result of the parent’s mental health condition, or is at risk of such harm in the future. Relevant evidence in this circumstance might include documents or testimony showing that the parent’s condition affects their children, or evidence of the parent’s lack of willingness to treat their mental health condition. In these cases, the views of the Independent Children’s Lawyer on the best interests of the child are also taken into account.
If the court is persuaded that there is evidence of a mental illness that impacts significantly on the well-being of a child, it may order that the parent undergo a psychiatric assessment from a qualified psychologist or psychiatrist. The court can also order that a parent access treatment as a condition of them retaining parental responsibility and/or time with their children.
The court can make orders limiting contact between the child and parent, or order that the parent have only supervised contact in a safe environment. When mental health problems are related to substance use, the court sometimes imposes mandatory drug or alcohol testing to assess the parent’s current and ongoing usage. In some cases, the court may determine that it is in the child’s best interest to have no contact with a parent who is suffering from severe mental health challenges.
Crucially, if parenting orders are made against someone because of a mental health condition, the parent can apply to have the order varied or set aside if they recover or take successful steps to manage their condition. In such cases, the court must be satisfied that there is a significant change in circumstances before it will alter an existing parenting order.
Conduct of parties during parenting proceedings
A parent who has a mental health disorder will often find a family law proceeding especially challenging, as the stressful nature of a legal dispute can trigger or worsen their condition. This may result in the parent having difficulty in managing their behaviour at a time when their parenting is under scrutiny. It is therefore particularly important that parents maintain appropriate treatment during their family law matter.
A parent with a mental health condition can advocate for themselves by demonstrating that they are actively managing their condition. This typically includes providing evidence of engagement in treatment with appropriate health professionals and the regular administration of any prescription medication. Where the parent is managing their condition, they are much more likely to retain parental responsibility and contact time. For instance, in Furlan & Furlan & Anor [2018], a mother with diagnosed Bipolar Affective Disorder and Attention Deficit/Hyperactivity Disorder was granted the majority of parental time. The court took the advice of the Independent Children’s Lawyer and took careful note that the mother was medicating herself willingly and engaging in continued treatment with regular reports from practitioners. The court stated that the risk of neglect and psychological harm to the child was only present if the mother relapsed, which was possible but could not be predicted. Importantly, the mother agreed to continue living with her parents, or within 10km of them, increasing the chances that a mental health decline would be noticed in a timely fashion.
The court assesses whether parenting arrangements are in the best interests of the child, and each parent’s mental fitness does play a role in this decision. Taylor Rose can provide advice about the impact of mental health on applying for parenting orders in Australia. Please get in touch with the family law team on 1800 491 469.
