Mental Health Considerations in making parenting orders: What Australian Families Need to Know

Dec 5, 2023

How Parenting Orders Imposed by the Court may Affect Mental Health

According to the Australian Bureau of Statistics, around 43% of Australians aged 16-85 years old have experienced a mental disorder at some point in their lives.

Legal disputes generally can be extremely stressful and emotionally taxing. Family law disputes, however, can have negative impacts on even the most emotionally resilient individuals especially if they involve parenting proceedings, previously known as custody disputes.

For those who have pre-existing mental health conditions, family law proceedings can be especially challenging, particularly if a parent’s mental health becomes a topic of concern in proceedings.

Parental mental illness can be relevant to proceedings if the mental illness impacts the parent’s ability to be a responsible parent. In Australia, the Federal Circuit and Family Court of Australia has jurisdiction over parenting proceedings.

Mental Health and Parenting Orders

Assessing Parental Mental Health in Parenting disputes

Usually, mental illness concerns are brought up in family law and parenting proceedings by the other parent.

The Court may then order that the parent in question undergo psychiatric assessment and potentially treatment. The parent will then have to see a psychologist or psychiatrist for evaluation.

The Court will not simply make orders of this nature just because one parent claims the other parent is mentally unfit to parent, the Court will instead require evidence that the parent is suffering from a mental illness. Relevant evidence may include:

  • Medical evidence that the parent has a mental illness;
  • Evidence as to what mental illness they have;
  • Evidence of their symptoms;
  • Evidence as to how the condition impacts the children;
  • Evidence demonstrating how the condition impacts the parent’s ability to parent; and
  • Evidence of the parent’s steps (or lack thereof) to manage and treat their condition.


The presence of a mental illness is not necessarily relevant to parenting proceedings unless there is evidence that the condition negatively impacts the children involved.

Usually, a past mental health condition that is no longer present will not be relevant to proceedings. If it is alleged that mental health problems are connected to drug or alcohol abuse, the Court may impose mandatory drug or alcohol testing on the parent in question.


Putting Children First: Deciding What’s Best

In all parenting proceedings, the Court’s paramount consideration is the best interests of the children.

When deciding what is in the best interests of the children, the Court will consider the benefit to the child of having a relationship with both parents and the need to protect the child from harm, although these considerations are set to be modified with the introduction of amendments to the Family Law Act 1975.

When making parenting orders, the Court can consider any matter which it thinks is relevant, including the capacity for each parent to provide for the child. This enables the Court to consider the impacts of the parent’s mental health when making orders.

The Court may decide that it is in the child’s best interests to have no contact with the parent with the mental health condition, or the Court may make orders limiting the contact between the parent and child.

The Court may also make orders for supervised contact only, which would enable the parent and child to have contact in a safe, supervised environment.


Rights of Parents with Mental Health Conditions

Parents with a mental health condition can best advocate their capability to parent by demonstrating the ways in which they are managing their condition. This may include evidence of treatment from a GP or mental health professional like a psychologist, or prescription medication.

If parenting orders are made that limit the time the parent with the condition has with a child, and the parent later recovers or receives treatment, the parent may be able to apply to have the orders varied or set aside.

Need Guidance on Family Law Matters?

Navigating family law can be complex and emotionally challenging. Whether you’re dealing with custody issues, divorce proceedings, or any other family law matters, you don’t have to face it alone. Contact Matthies Lawyers today for expert legal advice and compassionate support. Let us help you find the best path forward.

Sharing time with the Child When Mental Health is a Concern

Co-parenting when one parent has a mental illness may be challenging, however in practice, shared parenting arrangements should work the same way as it does for parents without any mental health conditions.

Therefore, the Court will make the orders it sees fit, based on the evidence and both parents will need to adhere to the conditions of the orders.

The main problem that may arise is where the parent with the mental health condition wants to move away either for treatment or to be closer to family for support. If they are responsible for the majority of the care of the child, they may wish to move the children away too.

More information about what the Court has to consider when one party wishes to relocate can be found in this blog about child relocation after separation.


What Happens after the Custody Decision

After the Court has made parenting orders, a parent may appeal the decision if they are not satisfied with the outcome. Alternatively, if the parent with the mental health condition has been receiving treatment, they may apply to the Court to have the orders revoked or varied. Otherwise, both parents will need to comply with the conditions of the orders.

Conclusion: Take your Next Steps with Confidence

If you are a parent with a mental health condition, it is important to focus on your health and ensure you are managing your condition and seeking treatment.

It is also important to keep an eye on your wellbeing during proceedings as the stressful nature of family law matters can trigger and worsen pre-existing mental health conditions.

Parents with a mental health condition and parents concerned about the safety of their children due to the other parent’s mental health, should both seek legal advice to ensure the best outcome for your matter.

For further mental health support see:


At Matthies Lawyers, we are here to cater to your family law needs. Our team of family lawyers proudly serves clients in South Yarra, Toorak, Windsor, Prahran, Armadale, and Richmond.

Contact us today for expert legal advice and support or call +61 3 8692 2517.

Kate Scolyer – Solicitor– Matthies Lawyers

Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.