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Parental Mental Illness – Does this Mean You Cannot See Your Child? Restoring the Relationship – A recent case – Father obtains Orders for time with Children

21/07/2021

In some families, a parent’s mental health can cause complex and long term issues that impact the family and particularly the children.  The safety and wellbeing of children may require intervention by a Court.  Having a mental illness does not automatically or permanently prevent a parent from having a relationship with their child. 

It does not mean that in the long term the parent cannot be responsible for the care, welfare and development of the children.  However the existence of a mental illness could affect and influence the Court’s decision in relation to parenting Orders.  

The Family Court of Australia or Federal Circuit Court of Australia will make Parenting Orders that are in the child’s best interest.  The Family Court or Federal Circuit Court looks at primary and additional considerations in making that decision.  The Court does not make Parenting Orders based on one parent’s view of what is best for that parent. 

How Does the Court Determine a Child’s Best Interests?  Section 66CC – Family Law Act 

The Court will determine what is in the child’s best interest by looking at the primary and additional considerations set out in Section 60CC of the Family Law Act 1975.

The Primary Considerations are:

  1. The benefit of a child having a meaningful relationship with both of the child’s parents; and
  2. The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. 

Important Additional Considerations are:

  1. Any views expressed by the child. 
  2. The nature of the child’s relationship with each parent. 
  3. The history of the parent’s participation in making decisions about major long term issues in the child’s life and spending time with the child and communicating with the child. 

Father Suffers From a Mental Illness

Watson & Watson Lawyers acted for a father in circumstances where for many years the father and the mother and the children lived together harmoniously.  The Husband began to show behavioural changes and became aggressive towards the mother and the aggression took place within the household.  The children were in a situation where they were exposed to the father’s erratic behaviour and his aggressive behaviour towards their mother.  The father had not sought any medical assistance and was not on any medication. 

Mother Makes Application to the Family Court of Australia 

The mother sought legal advice and commenced proceedings in the Family Court of Australia.  The Wife assembled evidence in relation to the deterioration of the Husband’s behaviour and detailed the behaviour of the father which the children might have been exposed to and how the situation within the household, continued to deteriorate. 

The Wife obtained orders from the Family Court of Australia on an ex parte basis (the Husband was not present and the Husband had not been served with the Wife’s Initiating Application).  The first that the Husband knew that the Court had made Orders was when a Process Server served the Orders upon him at his place of work. 

Ex Parte Orders

The Orders made without the Husband being in Court:

  • Prevented the father from returning to the matrimonial home. 
  • Prevented the father from attending the Wife’s place of work.
  • Prevented the father from going to the children’s school. 

The father found himself in a position where he had nowhere to live and could not see his children.  The father went to live with his mother.  He sought advice from Watson & Watson in relation to his options.  The father was fearful that by reason of what had happened, he may never see his children again.

The Court also appointed an Independent Children’s Lawyer to represent the interests of the children. 

Advice and Action – Watson and Watson

The advice given by Watson & Watson to the father to enable him to re-establish a relationship with his children was that he would need to have evidence available for the Family Court which addressed the issues raised in the Wife’s case.  He would need evidence in relation to his capacity to parent and in relation to controlling his potential for violent or erratic behaviour. 

Watson & Watson arranged for a psychiatric examination of the father and obtained reports from a suitably qualified Psychiatrist which identified the nature of the father’s illness and the treatment which could be given to restore the father’s mental heath.

Court Appointed Expert - Single Expert Report

The Psychiatric Report identified the Husband’s condition and recommended a course of treatment.  The Court appointed a single expert to give evidence in relation to the father’s capacity to parent and any propensity for a return to the aggressive and erratic behaviour that had led to the commencement of the proceedings and resulted in the order preventing the Husband from spending any time with his children. 

The independent expert devised a proposal for the Husband’s continued treatment which would be incremental and would allow for an increase in the time the father spent with the children linked to the status and success of his ongoing treatment.

Expediential Expansion

The Independent Experts evidence was that the re-establishment of the relationship between the father and the children would have to take place over time and in incremental stages.

Watson & Watson in conjunction with the Independent Children’s Lawyer prepared Orders for approval by the Court.  The Orders provided for increased time spent between the father and the children each time the father achieved a treatment milestone.

The incremental stages of increased time between the father and his children were:

  • Commence with supervised time for short periods of time. 
  • Progress to supervised time with longer periods. 
  • Progress to unsupervised time for short periods. 
  • Progress to unsupervised time for longer periods. 
  • Progress to one night overnight. 
  • Progress to every second week. 
  • Progress to time in school holidays. 

The increases over time would progress so long as the father’s medical treatment was successful and continued to be successful.  Each incremental stage of increased time and relaxation of the conditions imposed was positively adjusted as the father met critical stages of his treatment. 

The program progressed and the father now spends time with the children on an unsupervised basis in accordance with the Orders or as otherwise agreed with the mother. 

The importance of continued contact with your child/children when a marriage or relationship breaks down is paramount in maintaining a good relationship with your children.  If you are in process of separation or divorce and are concerned about your spouse/partner’s or your mental health and how it will impact contact arrangements at Watson & Watson our experienced Family Law Solicitors can assist you.  Please contact Richard Watson Senior Family Law Solicitor or his Personal Assistant Shereen Da Gloria to discuss your matter and seek appropriate advice sooner rather than later.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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