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Chapter 7 Section G: Family law and caring for your children

7G.1: Introduction

This section explains what happens if you have a mental health condition and are involved with family law issues, including if you become involved with family law in part because of what someone else sees as symptoms of a mental health condition.

The section deals with divorce and property settlements (arrangements about who will get what property when a relationship breaks down) as well as parenting issues.

There is a separate section of the Manual that tells you more about what are called in NSW ‘care and protection’ (of children) matters. This deals with matters concerning people with mental health conditions who have family responsibilities. To find out more Click here.

You can become involved with the family law if:

  • your marriage or long-term relationship breaks down
  • you and your spouse are divorcing, and you can’t agree about who will keep what property and other assets
  • you are the birth parent of a child or children under 18 years of age and you cannot agree about who will look after them or visiting rights; or
  • if you are not the biological parent of a child or children under 18 years of age, but you have a role in their care, and you cannot agree about who will look after them in the future.

You can become involved with NSW Department of Community and Justice or the NSW Children’s Court dealing with the ‘care and protection’ of children if:

  • you have a child or children under eighteen (18) years of age in your care and someone thinks they are at risk of harm; or
  • you think your children or other children in someone else’s care are at risk of harm.

The Commonwealth Parliament makes most laws about marriage and families in Australia. The Family Court of Australia and the Federal Magistrates’ Court (called ‘the Courts’ in this section) are the two courts that deal with family law cases and disputes.

Care and protection laws in Australia are made by the state and territory parliaments. In NSW, the NSW Children’s Court makes care and protection orders. Sometimes the Family Court and the Children’s Court can both be dealing at the same time with issues about your child or children in your care. Both these Courts have arrangements so that, if this happens, the outcomes can be coordinated.

If you have a mental health condition and find yourself in any in the situations described above involving children, then you may not be able to avoid the mental health condition becoming an issue in your family law and/or care and protection matters.

The Courts or the NSW Department of Communities and Justice make decisions that they believe are in the child’s or the children’s best interest, even though sometimes they may seem to be unfair to you.

Click here if you have a mental health condition and want to learn about how this could affect your contact with NSW Department of Communities and Justice and the Children’s Court in care and protection matters.

If you do not have, or are not responsible for, the care any children under eighteen (18) years old, the fact that you have a mental health condition is not seen as relevant by the Courts when they are dealing with divorce and property settlements, unless it relates to your future care needs.

7G.2: Divorce

Divorce is the official ending of a marriage. Divorce in Australia is called ‘no fault’ divorce, which means that you can get a divorce without proving that your spouse has done something wrong. This is true even if your spouse does not want a divorce. Instead, you need to show is a ‘irretrievable breakdown’ of your relationship, and that there is no chance of getting back together (‘reconciliation’). To show this, you have to make a sworn statement (in the form of an ‘affidavit’) that you have lived ‘separately and apart’ for twelve (12) months and that there are no prospects of reconciliation.

Most divorce applications are not challenged and most divorces do not require anything more than the formal written application and very short hearing in court.

The fact that one spouse or the other has or had a mental health condition is not relevant to a divorce application (unless there are children of the marriage or it relates to the future care needs of the spouse).

If there are children of the marriage, the Courts need to know what arrangements are being made for the care of those children. Because the Courts’ primary concern must be the protection of the child or children’s best interests, the mental health of either spouse can become relevant. Under Australian family law, children have a right to enjoy a meaningful relationship with both their parents, and to be protected from harm. A court is required to give greater weight to the consideration of the need to protect children from harm.

In NSW, legal aid funding or assistance is not available for divorce applications except in special circumstances. To read more click here.

For more information about divorce, click here. If you are not married but have been in a long-term relationship that is ending, you may want to find out more about your legal situation. To find out more information about ‘de facto’ relationships’, click here.

7G.3: Property disputes

If there is ‘joint property’ belonging to you and your partner or spouse, this will have to be divided up after you separate or when you divorce. ‘Joint property’ can be ‘real property’ like land or houses and it could also household items and money. A property settlement, or the formal division of jointly owned property, can occur any time after separation, whether you are divorced or not. However, if your divorce has been finalised, a property settlement must occur within twelve (12) months of it being finalised.

If both parties can agree on how to divide assets, you can submit your agreement to the Family Court. The Family Court will review all the financial information and if it finds that this arrangement is fair, it can make ‘consent orders’. This means that your agreement on property settlement will becoming legally binding and there will be consequences for breaking the agreement (‘breach’).

If there is no agreement about a property settlement, the Courts will decide how the property will be divided.

Because divorce in Australia is ‘no fault’ divorce, it is very unlikely that the mental health of one spouse could be relevant to a property dispute. It could be relevant that one spouse or partner was not able to contribute to the family income because they were unable to work because of a mental health condition. This could make the Courts more sympathetic to the person with the mental health condition.

If you are not married but have been in a long-term relationship that is breaking up, you may want to find out more about what your legal rights and obligations are in relation to shared property. LawAccess has information available online. To find more information about de facto relationships and property disputes, click here.

It may also be helpful to seek advice from your accountant and/or a financial planner in relation to a property settlement.

7G.4: Disputes about parenting and care of children

If possible, the first step is to try to negotiate a temporary and reasonable child caring arrangement with your ex-partner. However, do not commit to a parenting arrangement without seeking advice if you do not feel the proposed arrangement is acceptable.

See NSW Department of Communities and Justice and the Children’s Court for information around parenting disputes.

In this section as well as outlining the basic principles considered by the Courts, further information about how a mental health condition might specifically affect parenting disputes can be found here.

There is also information about parenting arrangements under family law, and information about how the Courts deal with a mental health condition and parenting orders.

There is also information about legal representation for you and separate legal representation for children and where you can get information and support with family law issues.

7G.4.1: Basic principles guiding Courts in parenting disputes

The law that governs parenting arrangements after divorce is the Family Law Act 1975 (Cth). Under the Act, there is a presumption that, following separation, both parents will continue to have ‘equal shared parental responsibility’ for any child or children of the relationship, unless there is a Court Order saying otherwise. Equal shared parental responsibility means that both parties have the right or ability to play a role in making major decisions for the children. This includes decisions such as the choice of children’s school or medical decisions.

Both parties have an obligation to facilitate a meaningful and significant relationship between the child or children and the other parent.

These principles do not apply if there are issues relating to domestic and family violence, child abuse, illicit substance use, alcohol abuse, or any other factors which may be harmful to the child’s best interest or put the child at risk of being physically or emotionally abused.

When the Courts make decisions about parenting or care of children, the welfare of the child or children concerned should be the ‘paramount consideration’, or the most important factor in their decision-making. This does not mean that the Courts should ignore other considerations, just that other considerations should not lead to a situation that is not in the child or children’s best interests.

If you have a mental health condition, sometimes the Court will be told that the mental health condition affects your ability to be an effective carer for children. Your ex-partner may argue that you should not be part of the parenting arrangements for a child, or perhaps that you should not be allowed to visit and/or have contact with your child or children.

The Courts dealing with family law in Australia have made it clear that there is no legal presumption that a person is not capable of being a responsible parent, just because they have been diagnosed with mental health condition.

It is not necessarily negative to your interests if the Courts have information about your mental health condition. For example, you may bring a mental health plan to show the Court that you are actively addressing your mental health condition and that it does not impact your ability to provider for the needs of your child. The Courts will consider mental health conditions on a case by case basis.

If your ex-partner tries to raise your mental health condition, they will need to show how your it specifically impacts one of the factors the Court has to consider. If the Courts are satisfied that a person’s mental health condition affects their parenting capacity, they can change parenting arrangements to reflect this.

7G.4.2: When might a mental health condition be relevant to a parenting issue?

If you are in a dispute about the care of children, your diagnosis of mental illness can become one of the issues in this dispute. This could happen whether or not you are receiving treatment, and if you are in a mental health facility or in the community.

For example, you may be receiving treatment for your mental illness in the community (including on a Community Treatment Order) and your symptoms and/or the side effects of your medication mean that you are temporarily unable to adequately care for children normally in your care. Mental health may also be raised in a parenting dispute if you are a voluntary patient at a mental health facility and are temporarily unable to care for your children.

In any of these situations, the other parent of your children or a parent of children you are caring for, could seek to change any existing informal arrangements about the care of the children. They could apply for a change to existing parenting orders or parenting agreements in the Family Court or Federal Magistrates Court.

This could result in you:

  • losing your right to provide daily or shared care of a child or children (or having this right suspended); or
  • having an order made that gives you the right to have regular contact with the child or children (but this may be limited to supervised contact only).

If your partner, spouse or another person has changed the parenting arrangements for a child or children who you used to provide care for by removing them from your care when you were in hospital or acutely unwell, you may have to take action to get them back.

7G.4.3: Overview of parenting plans

If you and the other parent can agree on parenting issues, you can make a parenting plan. This is an informal agreement between you and your former partner setting out parenting arrangements for children. It can include a number of different issues, such as where the child lives, how much time they spend with the other parent, the division of parental responsibility and decision-making, and financial arrangements. A parenting plan should be in writing and signed by both parents. They are not legally enforceable. For information about parenting plans and an example of a parenting plan, click here.

You and the other parent can submit your parenting plan to the Family Court. The Family Court will review all the information and if it finds that this arrangement is fair, it can make ‘consent orders’. This means that your parenting plan becomes legally binding and there will be consequences for not complying with the plan (‘breach’).

However, if you cannot agree on a parenting plan, you may need to go through Family Dispute Resolution or mediation, through lawyers or through the Courts system.

In family law cases, you must make a genuine effort to resolve your disputes through dispute resolution services before you can apply to the courts for parenting orders. The Courts only hear an application for a parenting order if there is a certificate from an accredited family dispute practitioner is included with the application.

The Courts will make an exception to the requirement for you to see an accredited family dispute practitioner if:

  • your matter is urgent;
  • there are reasonable grounds to believe that family violence or child abuse has occurred/or there is a risk of this occurring;
  • one party cannot participate effectively in family dispute resolution (for example, due to an incapacity or physical remoteness); or
  • a party has contravened (breached) and shown a serious disregard for a court order made in the last twelve (12) months.

If you think one of these exception applies to your situation, or you have another reason why you don’t want to try family dispute resolution, you should seek legal advice.

7G.4.4: Family Law Mediation

You can reach a parenting plan using a type of alternative dispute resolution process under the Family Law Act 1975 (Cth) called Family Dispute Resolution (FDR) or family mediation.

During FDR, a neutral third person (a mediator) will listen to separating families and help them to come to their own parenting agreements. The mediator will help both parents to:

  • identifying the issues which need to be resolved
  • listen to each other’s point of view without interruption
  • sharing relevant information
  • exploring ideas and options
  • testing possible solutions; and
  • putting decisions and agreements in writing.

The mediator does not ‘pick a side’ or make the parenting plan themselves.

Mediation can be happen informally with a friend or family member helping the parents come to an arrangement. It can also involve a person who has been trained (‘accredited’) as an FDR practitioner.

This confidential process is faster, more cost effective, more flexible and less formal than court processes. It can promote communication between the parties and empower the parties.

You can engage in FDR through:

The exact cost of mediation will depend on the provider, and private providers setting their own fees. Family relationship centres provide one hour of their services free and will charge after this depending on your financial situation. To find a FDR practitioner near you, click here.

For more information on dispute resolution costs, click here.

7G.4.5: Reaching parenting agreement with lawyers

If you cannot reach an agreement with the other part during Family Mediation, you can continue to negotiate with the other party through lawyers with experience in family law. For more information about legal representation, click here.

If you cannot reach an agreement regarding parenting arrangements with lawyers, you can go to court.

7G.4.6: How the Courts deal with mental illness and parenting orders

The Courts make a single parenting order setting out the rights and obligations of both parents and sometimes others (for example, grandparents of the child or children).

Under such orders, the parents may have joint responsibility for most of the decisions about a child’s welfare and the child or children may spend time living with each parent.

Even if either you or another person decides to apply to a court for a parenting order, the Court is likely to encourage everyone involved to try to agree on parenting arrangements through the Parenting Orders Program.

For a fact sheet on the program, click here.

Legal Aid NSW has a pamphlet setting out frequently asked questions and answers about family law, including information about parenting orders. To read about this, click here.

The Family Court of Australia provides information about how to apply for parenting orders. To read more, click here.

If someone says another person is unable to provide appropriate care for a child because of the symptoms or effects of a mental health condition, then they may present expert evidence (usually from a psychiatrist but sometimes from a psychologist or other health professional) to the Courts about the effects of a mental health condition on the welfare of the child. In these circumstances you may also choose to get a report from another expert. Sometimes the Courts appoint an independent expert who can speak to everyone involved, including the children, and then prepare their independent expert report with recommendations for the Court.

It may be helpful to the Court if you can provide reports from your treating doctors and other health professionals. However, your files may include information that leads the Court to decide to limit your contact with your children. Equally, the files may provide the Court with evidence about your past or future treatment and current condition, which helps convince the Court to conclude that you are able to adequately care for your child or your children.

7G.4.7: Conditions on Parenting Orders

The Courts can place conditions on a parenting order including a condition that a person will be allowed to continue to exercise rights to care for or to visit their child as long as they agree to receive, for example, certain treatment.

For more information on what to do if a parent is not following parenting orders, click here.

7G.4.8: Changing a previous order

Changing a parenting order, even if your mental health condition has greatly improved, can be difficult. One reason for this is that the Courts may be reluctant to change what has become a stable situation for a child, regardless of how much effort a parent has put into overcoming their mental health condition in order to get their children back. The Courts view maintaining stability and certainty for a child as in their ‘best interest’.

If you want to have a parenting order changed, you will need legal advice about how to go about this. For more about legal advice and representation, click here.

7G.4.9: Legal representation

It is strongly recommended that you get legal advice before you make any final decisions or make an application to the Court about parenting orders. It is essential that you are aware of all your options and of all legal consequences before you agree to a Parenting Order. The best source of such advice is a lawyer with experience in family law cases.

If you are not feeling well enough to deal with a court hearing and the necessary negotiations that go with a court hearing or you are only temporarily not able to care for your children, for example, because you are in hospital, then a lawyer can try to get the Court to delay any decision or try to convince the Court to only make temporary or short-term parenting orders. This will not automatically happen, so it helps if you have a legal representative to explain your position.

Legal aid funding and/or legal help is available from Legal Aid NSW for some family law issues, including applying for, responding to and varying parenting orders. For all the Legal Aid NSW policies for family law, click here.

Legal Aid NSW can sometimes pay a private lawyer to help you. If you are seeking advice and representation about parenting orders, it is best to get a lawyer who is an accredited expert in family law.

The NSW Law Society can tell you who are accredited family law specialists in your area.

7G.4.10: Separate representation for children

In Court proceedings about parenting orders, an independent children’s lawyer can sometimes be appointed. They form an independent view of the child’s best interests and act in the child’s best interests, including by explaining the child’s views before the court and trying to minimise any negative impact of the court proceedings on the child. Legal Aid NSW will usually pay for this legal representation.

For a Legal Aid NSW information about separate representation for children, click here.

7G.5: Restoration Plans

The law requires a Restoration Plan, or a plan for your child to be brought home, to be made:

  • where children or young people are in temporary care arranged by the Department of Communities and Justice (DCJ);
  • where children or young people have been in short term care arranged by a fostering agency for more than a month, and the plan is for them to go home;
  • where a child or young person is before the Children’s Court, and DCJ or the Court see a realistic possibility that the child could be restored; or
  • when a Care Order is made allocating parental responsibility and the Care Plan states the circumstances under which a child or young person could return home.

To read about “Restoration Plans” and other information, click here.

7G.6: Where to find more information about family law

The Family Relationship Advice Line on 1800 050 321* is a confidential telephone information service for people needing help to access the full range of information available on family law. If you need an interpreter, contact the centre in advance to let them know.
Information about family law issues can also be found below:

*Mobile phone calls to free-call numbers (numbers starting with 1800) are charged to the caller at the usual mobile rate.

Updated May 22, 2020