The National Survey of Mental Health and Wellbeing states that 45% of Australians experience mental illness in their lifetime.  It also states that 1 in 5 Australians will have a mental illness in any given year. The issue of mental health of parents often arises in the context of family breakdown where one parent is concerned about the impact of the other parent’s mental illness on the wellbeing of their children.

If you are concerned about the impact of your former spouse’s mental illness on the wellbeing of your child, you may apply for a parenting order.

What is a parenting order?

A parenting order is an order made by the court after a hearing or trial. A parenting order covers issues such as:

  • where the child is to live;
  • the type of contact a child may have with his or her parents;
  • the allocation of parental responsibility;
  • how the child will communicate with the parent that they do not live with; and
  • any other aspect of the care, welfare and development of the child.

These types of orders are frequently used when a parent’s mental illness adversely affects their capacity to properly look after their children.

Who can apply?

A parenting order in relation to a child can be applied for by:

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

Who does it apply to?

A parenting order can apply to a child that is under 18 years old and is not married or living in a de facto relationship. A parenting order can be made in favour of the parents or some other person.

Counselling

Unless you and your former spouse agree to the parenting order, the court will generally require you both to attend family dispute resolution (mediation) before making a parenting order.

No presumption of unfitness

It is important to remember that court will not issue a parenting order just because your former spouse has a mental illness.  Also, the court will not presume that because you do not have a mental illness, you are automatically a better parent than your mentally ill former spouse.

What is relevant?

In deciding to make a parenting order, the court’s paramount consideration is the best interests of the child.  This will be the case, even if the parenting order is demonstrably unfair to a parent.  The court does not have to balance a child’s interests against other competing interests, such as justice for the parents.

If you apply for a parenting order that seeks to limit the contact your child has with your former spouse, or that your child lives solely with you, then the question the court must ask is whether your former spouse’s mental illness impacts on his or her capacity to provide residence or have contact with the child.

If the court concludes that the mental illness of your former spouse does not affect his or her capacity to be responsible parent, then the court will not make your order.

General principles

The courts have shown that maintaining meaningful relationships with both parents, including those suffering from a mental illness, is generally considered to be in the best interests of the child.

Therefore, the question the court must consider is what type of parenting relationship is in the best interests of the child.  It is only in extreme circumstances that the court will make a parenting order that denies a child all contact with a mentally ill parent.

What if the parent recovers?

If your former spouse has had contact with your child restricted through a parenting order due to mental illness, he or she may be able to apply to have the order varied if he or she has recovered from the mental illness, and the court is satisfied that this amounts to a “significant change in circumstances” since the parenting orders were made.

However, recovery alone will not be enough to lift any restrictions in the parenting order.  Even if your former spouse can demonstrate to the court that he or she has made a full recovery, it will not necessarily lead to an amendment of the order if the court finds that it is not in the best interests of the child to do so (for example, due to the disruption in the stability of the child’s life).

Some parenting orders can include the requirement for the parent to which it applies to take certain steps (for example, psychiatric treatment) before he or she can apply for a change in the order.  You will need to think carefully about what you wish to include in the parenting order for the best interests of your child.

Contravening a parenting order

If you believe that your former spouse is contravening a parenting order, then you can file an application with the court.  If the court finds that your former spouse contravened the parenting order without a reasonable excuse, then penalties include varying the original order, “make up time”, completion of a parenting course, community service, a fine and in some circumstances, imprisonment.

Next steps

The best interests of children lie at the heart of family law.  The court will not take into account what is fair to you when deciding what is best for your children. If you are worried about the effect of your former spouse’s mental illness on your children, then you should discuss your concerns with a lawyer who will be able to advise you whether a parenting order is the best solution or whether there are alternative methods that may address your concerns. Owen Hodge would be happy to help you decide whether a parenting order is the right option for you. Call today at 1800 770 780 or contact us via ohl@owenhodge.com.au to schedule a consultation and learn more about the assistance we can provide.