Mental illness is a psychological disorder that may affect the way people feel, behave and manage daily activities. Mental illness includes anxiety, bipolar disorder, depression, and schizophrenia. It impacts not only on one’s life but also on their children.

An Australian Bureau of Statistics survey in 2021 showed that 2 in 5 Australians aged 16 to 85 experience mental illness. Nowadays, it becomes common for a parent to raise concerns in their children’s matters due to the other parent’s mental illness in Court proceedings. Mental illness can be a reason why the Court limits parental contact in the Family Law system.

How can the Court intervene when one parent is suffering from a mental illness?

The Family Court has the power to make the following Orders when there is a safety risk to a child:

  • Who will have parental responsibility for the children;
  • Where the children live and with whom the children live;
  • How much time the children spend with the other parent; and 
  • How the parents communicate with each other about the children.

Determining the children’s best interests

In making these Orders, the Court will consider the children’s best interests. Section 60CC of the Family Law Act 1975 (Cth) provides that the primary considerations are “the benefit to the child of having a meaningful relationship with both parents” and “the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.”

The Court will not make orders limiting one parent’s time with the children just because a parent is suffering from mental illness. However, the Court will consider whether mental illness causes a risk to the children and look at evidence once an allegation is raised in a parenting dispute.  Once the Court accepts that mental illness poses an unacceptable risk to the children, the Court will intervene and make Orders.

Before making parenting Orders, the Federal Circuit and Family Court of Australia will consider the likelihood of children being exposed to neglect, family violence or child abuse. Further, the Court will balance the risk with the need for the children to have a meaningful relationship with both parents.

Furlan & Furlan & Anor [2018] FCCA 3157

In this case, the mother was diagnosed with Bipolar Affective Disorder. The mother was medicated and willingly accepted the prescribed medication. Although the mother had mental health issues, the Court ordered that the children live with the mother and spend time with the father. The Court stated that the risk to the children is the possibility of psychological harm and neglect as a result of the mother’s mental health issues. The Court acknowledged that it was hard to predict when relapses would occur in each individual case.

As it was difficult for the Court to determine what probability there was that the mother would suffer a relapse in her mental health, the Court was satisfied that it would be in the children’s best interests for the children to live with the mother and spend time with the father. To strike a balance, the Court also made Orders for the mother to live within a 10km radius of her parents’ house and continue to receive treatment for her mental illness. Such Orders allowed the children to maintain a meaningful relationship with the parent whilst the parent obtained appropriate treatment of their mental illness.

It may be concluded that the Court was satisfied that the possible risk to the children was acceptable or at least manageble  when balanced with the benefit to the children having an ongoing meaningful relationship with the mother. 

Pourmoayedi & Hedayatian (2007) FMCAfam 607

In this case, the mother suffered from mental illness and the Court ordered that the child lives with the father and there shall be no contact between the child and the mother. The mother challenged the Order a few years later.

The Court considered a psychiatric assessment which stated that “the mother has a complex psychiatric history with a combination of recurrent psychiatric episodes and a fundamental personality disorder. There is also a consistent pattern of intimidation and harassment at times stalking behaviour.”

The Court accepted the opinion of the psychiatric assessment that “it is highly unlikely that there will be any alteration to the mother’s behaviour and it has been resistant to psychiatric intervention.” The Court made an Order that the child should live with the father, the father has sole parental responsibility, and there is no contact time between the child and the mother. This indicates that the Court may order that a parent have limited or no contact with the children after considering the relevant evidence.