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

7G.1: Introduction

This section deals with what happens if you have a mental health condition or have been diagnosed with a mental illness and are involved with family law or child welfare issues, or if you become involved with family law in part because of the condition or 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 used to be called ‘child welfare’. Click here to find out more.

You can become involved with the family law if:

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

  • You have children under 18 years of age in your care and someone thinks they are at risk of harm
  • 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 law in Australia is 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.

This is because the primary consideration in these situations for the Courts and NSW Department of Family and Community Services is the best interests of the children involved. This means that the Courts or NSW Department of Family and Community Services can make decisions that may seem to be very unfair to you but have been made because they believe that these decisions are in the child’s or the children’s best interest.

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

If you don’t have any children under 18 years old or are not responsible for the care of children under 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.

The Family Relationship Advise 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 when you call or want to get contact details for relevant services in your local area, call between 8.00 am and 8.00 pm Monday to Friday. Teletypewriter (TTY) and modem callers may call through the National Relay Service by dialling 1800 555 677* (then asking for 1800 050 321*).

*Remember, mobile phone calls to freecall numbers (numbers starting with 1800) are charged to the caller at the usual mobile rate.

7G.2: Divorce

Divorce is the official ending of a marriage. Divorce in Australia is called ‘no fault’ divorce. That means that to get a divorce you don’t have to prove that your spouse has done something wrong, even if your spouse does not want a divorce. All you have to show is ‘irretrievable breakdown’ of your relationship and that there is no chance of reconciliation. To do this you have to make a sworn statement (in the form of an ‘affidavit’) that you have lived ‘separately and apart’ for 12 months and that there are no prospects of reconciliation.

Most divorce applications are not challenged for this reason, and most divorces don’t 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. In this situation, the law about parenting arrangements after separation applies .

In NSW, legal aid funding or assistance is not available for divorce applications except in special circumstances. LawAccess has a number of resources available online that you might find useful.

Click here to go to the Law Access Online webpage then search for ‘divorce’

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 your legal situation. LawAccess has information available online.

Click here to go to the Law Access Online webpage then search for ‘de facto relationships’.

7G.3: Property disputes

If there is ‘joint property’ (not just real property like land or houses, but also household possessions and money) belonging to both you and your partner or spouse, this will have to be divided up after you separate or when you divorce.

People in this situation usually agree to a ‘property settlement’ but if there is no agreement, then the property has to be divided, and the Courts then decides how this will be done.

Because divorce in Australia is ‘no fault’ divorce , then 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, if anything, is likely to make the Courts more sympathetic to the person with the mental health condition.

If there isn’t much joint property of value, most couples come to an informal agreement about how to split the property between them. The only reason Courts would be likely to overturn such an agreement would be if any children were left in a worse position in relation to their daily living arrangements because of the proposed property settlement.

In NSW, legal aid funding or assistance is not available for disputes over property and money except in special circumstances.

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.

Click here to go to the Law Access Online webpage then search for ‘de facto relationships’

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

The next few pages are about disputes about parenting and family law.

If you need information about disputes about parenting, and the NSW Department of Family and Community Services and perhaps the Children’s Court are involved, click here.

As well as outlining the basic principles there is information about how a mental health condition might specifically affect these disputes.

There is also information about parenting arrangements under family law , and 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 parenting problems.

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

When the Courts make decisions about parenting or care of children, the law in Australia says that the decisions should be based on the principle that the welfare of the child or children concerned should be the ‘paramount consideration’.

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 best interests of the child or children.

If you have a mental health condition or your behaviour has been affected by your mental health condition, sometimes the Court will be told that the mental health condition affects your ability to be an effective carer for children or 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.

However, because the paramount consideration must be the ‘best interests of the child’, Courts can decide that a person’s mental health conditionaffects their parenting capacity and change the parenting arrangements because of this.

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

There are various situations where you could be faced with a dispute about the care of children, either:

  • because you have been diagnosed with a mental illness; or
  • because you are already in a dispute with someone about the care of children and your diagnosis of mental illness has become one of the issues in this dispute.

This could happen if you are separated from the other parent of your child or children and are:

  • an involuntary patient under the Mental Health Act 2007 (NSW) and because of this are temporarily unable to care for children normally in your care;
  • voluntary patient in a private or public psychiatric hospital or unit and therefore temporarily not able to care for children normally in your care;
  • getting treatment for your mental illness in the community (including on a Community Treatment Order) and because of the treatment and/or your symptoms and/or the side effects of your medication, you are temporarily unable to adequately care for children normally in your care;
  • on a Community Treatment Order or voluntarily receiving ongoing treatment for your mental illness in the community and someone thinks that the nature of your treatment or the symptoms of your mental illness affect your capacity to provide your children with appropriate care;
  • not getting any treatment or getting only limited treatment for mental illness but someone thinks you have a mental illness, and because of the lack of treatment that they think you should be getting, thinks you are unable to provide adequate care to your children.

Another possibility is that your partner or spouse ends the relationship with you, possibly leaving your home and taking the children with them, while you are in hospital getting treatment for your mental illness.

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 or 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);
  • 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 the initiative to get them back.

If you are not able to agree with the other people involved in the care of the child or children (this would usually be the other parent but could be a grandparent or other relative) about the future parenting arrangements, your only other option would be to apply for a parenting agreement in the Courts (or a variation to an existing agreement).

7G.4.3: Overview of parenting arrangements

The Family Court used to make orders for ‘custody’ and ‘access’ rights. These terms,’custody’ and ‘access’, are no longer used, and the Courts now 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).

A parenting order can be made either:

  • By the Courts as a consent order based on an agreement between everyone involved in care of the child or children; or
  • By the Courts after a hearing where everyone involved has a chance to present their views about what arrangements should be in place.

Parenting orders can deal with one or more of the following:

  • Who the child or children will live with.
  • How much time the child will spend with each parent or with other people such as grandparents.
  • Who will be responsible for making decisions about the child or children’s daily living and welfare.
  • How the child or children will communicate with people he or she does not live with (that is by visits, by telephone, by e-mail, etc).
  • Other aspects relating to the welfare of the child.

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 Family Parenting Order Program.

Click here for a fact sheet on the program.

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

For more information on parenting orders, please click here to access the Family Law Court information sheet to on this topic.

See also the on-line fact sheet ‘Steps to getting a Parenting Order’ from the National Council for Single Mothers and their Children.

7G.4.4: How the Courts deal with mental illness and parenting orders

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. If this happens in a case involving you, you may also choose to get a report from another expert on these issues. 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 give it reports from your treating doctors and other health professionals. The decision about whether or not to provide this information sometimes creates a dilemma. Your files may include information that leads the Court to decide to limit your contact with your children. However, 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.4.5: 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 specified or unspecified psychiatric treatment.

7G.4.6: Changing a previous order

Changing a parenting order, even if your mental health condition has greatly improved, can be difficult.

aOne reason for this is that the Courts are reluctant to change what has become a stable situation for a child, regardless of how unfair this may seem to a parent who has struggled to overcome their mental health condition in order to get their children back. This is because maintaining stability and certainty for a child, rather than allowing another significant change in their life, is seen 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, go to the next page

G.4.7: Legal representation

It is strongly recommended that you get legal advice and the help of a lawyer before you make any final decisions or make an application to the Court about parenting orders.

If you agree to a Parenting Order, the Courts will be reluctant to later change the terms of the order if this could be destabilising for the child or children involved. Therefore, it is essential that you are aware of all your options and aware 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 necessarily happen unless 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.

If a Legal Aid lawyer is already representing the other parent or someone else involved in the case, this will not prevent you from getting legal aid. In this situation, legal aid could be granted so that a private lawyer can represent you.

Many people apply for legal aid through a private lawyer. 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.4.8: Separate representation for children

In Court proceedings about parenting orders, children can be separately legally represented so that their views and opinions about the parenting arrangements can be presented to the Court and their interests protected. Legal Aid NSW will usually pay for this legal representation.

Click here for a Legal Aid NSW information about separate representation for children.

7G.5: Information about and support with parenting

If you need information or think you need help or support with parenting, you might find the following organisations helpful:

Parent Line, NSW: phone 132 055*. This is a 24-hour telephone advice and information service for parents of children living in New South Wales. It is a tollfree number anywhere in NSW.

Trained, professional counsellors with experience in helping families give support and assistance, provide information on relevant issues and services and on a wide range of parenting issues such as behaviour and emotional problems, discipline, adolescent issues, family relationships, sole parent issues, school problems, child care and juvenile justice.

Parent Line is available to help any parent in NSW, including parents from non-English speaking backgrounds, parents who are hearing impaired or Deaf, and parents who are Aboriginal or Torres Strait Islanders.

Tresillian Family Care Centres provide support through a 24-hour Parents Help Line. Phone 02 9787 0855 or 1800 637 357* for country NSW callers.

Callers get on-the-spot advice from Tresillian’s Child & Family Health professionals on any issue relating to caring for a baby or young child.

Northern Sydney Central Coast Health has an online pamphlet called ‘Tips for managing your parenting role during a mental health admission’.

*Remember, mobile phone calls to freecall numbers (numbers starting with 1800) and to Local call numbers (numbers starting with 13 or 1300) are charged to the caller at the usual mobile rate.

7G.6: Information about Restoration Plans

The law requires a Restoration Plan to be made:

  • where children or young people are in temporary care arranged by the Department of Community Services (DoCS)
  • 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 DoCS or the Court see a realistic possibility that the child could be restored
  • 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 an information sheet for parents about “Restoration Plans” click here.

To read an information sheet for parents about “Getting my children back home – Information for parents about restoration”click here.

Updated January 30, 2015