Can my Mental Health Diagnosis be used Against me?

A common allegations made in family law proceedings is that one or both of the parents suffer from a mental health condition. In many circumstances, the existence of a mental health diagnosis may not impact the proceedings at all if the mental health illness does not have an impact on the parent’s capacity to care for a child.

It is important for you to know that if you have had a mental health condition, have managed it throughout the relationship, have continued to manage it post separation and there is no indication that you have previously or are currently adversely impacting on your child’s health or safety, there is no legal presumption that you are incapable of being a responsible parent simply by reference to your diagnosis.

Similarly, there is no legal presumption that a person who does not suffer from a mental health issue is capable of being a responsible parent.

Ultimately, the Court’s paramount consideration is the best interests of the child. If it is found that a person does in fact suffer from a mental illness and that illness impacts a parent’s capacity to provide adequate care to the child and/or there is an unacceptable risk to the child, then the Court could implement a variety of measures to ensure protection for the child, including:
1. Change the way the children spend time with the parent (for example, look into whether or not supervision may be appropriate)
2. Require the parent to demonstrate that they are compliant with their treatment plan for their mental health condition; or
3. Change the child/children’s time with that parent.

In parenting matters, the Court may consider a myriad of factors when mental health allegations are raised, such as:

– Has the person who allegedly has a mental health condition been diagnosed?
– Is the condition being managed?
– What are the symptoms of the mental health condition? (Ex. Bursts of rage, depression, anxiety, hallucinations, paranoia, etc)
– Have those symptoms/behaviours impacted on the parent’s capacity to care for the children? (For example, have the children been neglected as a result of the symptoms, have they been subjected or exposed to abuse/violence?)
– What have the parents done in the past to address these behaviours/symptoms? (for example, have the children been removed from the household, was the person exhibiting the symptoms removed from the household, did a third party come in and assist the family, etc?)
– Has there been any impact on the children as a consequence of the mental illness (for example, have the children been harmed as a result of the behaviours/symptoms the mentally ill person was experiencing?)

The children are entitled to a relationship with both parents and unless a parent is deemed to be an unacceptable risk to the children, suffering from a mental illness does not necessarily preclude you from continuing to care for your children.

If you would like more information about this, please do not hesitate to contact one of our lawyers to speak confidentially in relation to your matter. Click here for Claire Naidu & Co’s contact details.