Family Law

Mental Illness and the Family Court

Going through a separation and relationship or family breakdown is difficult enough – if you are dealing with a mental health issue at the same time, things can easily become overwhelming.

The stress and trauma of separation can bring on mental illness even if you have never suffered from this kind of condition before. If the relationship has been a toxic or unhealthy one for you, you may be suffering from depression, anxiety, substance abuse, suicidal behaviours, or PTSD from the trauma you have been through.

One in four Australian adults suffer from a mental illness or condition, so you are definitely not alone. 

The matter of mental illness comes into consideration in many Family Court matters, especially how it will affect the parent’s ability to look after their children and plan for their future needs.

People facing a matter in the Family Court may feel distressed by their mental state, and may be inclined to hide it for fear that it might reflect badly on their ability to parent their children or look after finances. 

This is the last thing that the court wants for you, because if you are suffering from mental illness you should be able to ask for help, not fear reprisals and shy away from the stigma that can be attached.

How does the Family Court view mental illness?

The mentally ill need the protection of the courts even more than those without such concerns.

If you are suffering from mental health concerns, this alone should not affect your rights. When the court makes decisions about child custody or your ability to care for your children, they will consider what is in the best interests of the child, including their safety, their psychological, emotional and physical health, and their future.

There is no one-size-fits-all process for making decisions, it will come down to the specifics of your individual case. The Family Law Act and Courts will try their best to ensure a positive relationship continues between child and parent, as this is best for the child’s welfare and development. 

The best advice is to ensure that your lawyer, and therefore the court, has the most accurate information possible about your condition and how it affects you. The greater detail you provide on how you manage your condition and are supported, the greater the court’s ability to make a fair decision for your family.

These are not new concerns. In a paper back in 2006, Federal Magistrate Judy Ryan said:

“Notwithstanding community myths and stereotypes there is no legal presumption that a parent, by virtue of their mental illness, is incapable of being a responsible parent, nor is there any presumption that a parent who is free of such illness is better able to care for a child.”

Additionally, court orders are never final. Even if the court makes the decision that you can’t look after your kids at the current time, this is the opportunity for you to take steps to ensure you are properly supported and better able to manage your condition, so that in the future the orders can be changed.

Separation and stress

The Family Court has some helpful advice on how to deal with the stress of separation: 

Separation is a difficult time and it is normal to feel stressed or upset. Finding ways to manage these feelings is an important part of moving on and feeling better about yourself.

Sometimes it can be difficult to know if what you’re feeling is normal or something that you should get help with.

Are you:

  • Having trouble sleeping?
  • Feeling overwhelmed?
  • Irritable or anxious all the time?
  • Having trouble concentrating?
  • Feeling moody and easily frustrated?

If you’re experiencing any of these symptoms then you might need to get help or make changes to your day-to-day life.

It is important to remember that stress is normal, but if you feel stressed all the time and have been living with these symptoms for a while, it can lead to depression and other mental health issues in the future.

What can you do?

Learn about your stressors and put changes in place to avoid them

Overuse of alcohol or medications usually make the situation worse

Operate in a positive way. Give yourself a pat on the back for doing something well

Keep focussing on the good, even in difficult situations

Accept the things that can’t be changed

Find time to relax

Talk to a friend or family member

Eat healthy meals

Realise that things will eventually get better

You can make a list of everything you enjoy doing

Ordinary is ok. Lower the bar!

Understand your body and recognise when you need extra help

Realise that there are only so many hours in a day

Seek the assistance of a doctor or counsellor

Energise with gentle exercise like a walk or a bike ride

Look for ways to alter the situation and adapt to the stressor

Find a way to break your goals into small steps

Remember, you can’t give your best for your kids if you don’t look after yourself too.

Mental Illness and the Family Court – Resources to help

There are a number of support groups and services to help you.

Some of the groups that support parents are:

The Family Court has a good resources page to guide you when you are facing mental health and emotional wellbeing concerns and going through a court matter.

The Department of Human Services also has some helpful resources, including services to help separated parents, such as:

  • referrals to a private and confidential counselling service if you’d like to speak with a professional about your situation
  • support products and services with information and advice to help with the changes to your situation
  • the Child Support Information Service – an automated phone service parents receiving child support can use to get details about their account
  • a budgeting tool and information to help you manage your money.

You can get more information and assistance from DHS here.

Final Thoughts

So what do you do?

The main things to remember are that your lawyer needs to know everything there is to know about how your mental illness affects your legal and personal capacity to care for your children. This includes how you are managing your condition and what strategies and supports you have in place to look after your health.

An excellent place to start is to get a mental health plan developed with your GP, and put into place strategies to manage your health, such as seeing a psychologist or psychiatrist or taking medication to manage your condition. 

If you have concerns about how your mental condition may affect your rights in the Family Court, get in contact with me, because I may be able to help.