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On the edge of justice: the legal needs of people with a mental illness  ( 2006 )  Cite this report

Ch 3. Legal issues

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Family law issues

It is evident from the literature that there is a link between family separation and mental illness.198 Indeed, there are high rates of anxiety, depression, substance abuse and depression among adults experiencing divorce or separation.199 This raises questions regarding the impact mental illness can have on outcomes for people involved with the family law system.

For this study, consultations indicated that the most significant legal issue facing people with a mental illness who are involved in the family law system relates to parenting orders (orders concerning where and with whom children live). One participant stated:

    I am going to apply for a full blown divorce after I’ve moved into my own place. Then it will be an uphill battle after that just to get contact, or a phone number or a letter or something … I can’t see me getting unsupervised access anywhere.200

In making a parenting order, the Family Court must take into consideration the best interests of the child. Hence, in addition to the child’s expressed wishes and current living arrangements, and the parent’s attitude, the capacity of each parent to provide for the child’s needs is taken into account.201 Mental illness may be taken into account in assessing the capacity of a parent to care for their child.202

Legal service providers noted the difficulties people with a mental illness can have in proving they have the capacity to look after their children. First, one solicitor was of the opinion that there is often a perception that men who have a mental illness are more violent, and that this creates a bias against them in the Family Court.203

Secondly, community legal centre workers from Women’s Legal Services held that that for women who have been hospitalised as a result of mental illness, they can have great difficulties in regaining custody of their children when they are in hospital:

    She has been married for seven years, and there was ongoing domestic violence. She must have been very depressed [so] the husband suggested to her that she go and stay with her mother for a week, to give her a break. In the meantime her mental illness became much worse, and she ended up being hospitalised for a month. The children became settled in living with the father (even though he had been perpetrating domestic violence against her) so it will become much harder for her to get the children back again to live with her. It comes down to the best interests of the children and courts are very reluctant to change what they call the status quo residency. He might be violent towards her, but not violent towards the children. And you have got the case that she has mental health issues that will probably affect her parenting skills, so she has an uphill battle to start with. He will probably in all likelihood get residence.204

This was also reported by HREOC in the Burdekin Report.205

One family law solicitor said that in family court proceedings, parents with a mental illness must show that they have the capacity to care for their child:

    The best interests of the child are of paramount consideration when it comes to making parenting orders. So for somebody with a mental illness … if that becomes an issue in the proceedings, it becomes important to be able to show capacity in terms of being able to cater for the needs of children whether they are the contact parent or resident parent or shared care parent … It’s important to get relevant medical evidence so that the issues of capacity can be squarely addressed, so that the person is not disadvantaged by that evidence not being available.206

She stated that an important part of proving that parents have the capacity to care for their children is through assessment of the type of medical supervision available to the parent.207 However, one rural and regional solicitor was of the opinion that lack of appropriate medical treatment in rural and regional areas can pose a problem for parents with a mental illness who wish to gain residence or contact with their children.208


Karras, M, McCarron, E, Gray, A & Ardasinski, S 2006, On the edge of justice: the legal needs of people with a mental illness in NSW, Law and Justice Foundation of NSW, Sydney