Mental Health Assessment and Support in the Family Court

 

Having a mental health condition can often lead to the breakdown of a marital or de facto relationship, and the consequences of separation for such reasons can prove even more difficult to address where children are involved. 

The primary issue usually revolves around the concerned parent not being present to ensure a child is not exposed to worrying or potentially damaging behaviours. Such issues are not uncommon in Family Court proceedings.

The Family Court also regularly determines matters where there is conflict surrounding how best to manage a child who has mental health issues, and where the parents are unable to agree on the assessment, treatment and/or support for the child.

Family Lawyers obviously need to be empathetic in dealing with the above issues. However, this empathy must be balanced against an objective consideration as to whether any mental health concern has a negative impact on the welfare of the child – for example, whether there is an impact on that party’s ability to properly parent; whether it creates an ‘unacceptable risk of harm’ to the child; whether the ‘best interests’ of the child are affected; and whether the ‘family dynamic’ is compromised in any way. 

A prior mental health diagnosis (or concerns that one may exist) are often not of themselves enough to persuade the Family Court to order a mental health assessment and/or treatment.

If one party’s prior mental health status negatively impacts upon their continuing capacity to properly parent a child (particularly a young child who relies on that parent to meet their physical needs), then it might be argued that it is not in the child’s best interests to spend e.g. unsupervised or overnight time with that parent – at least in the short term whilst an assessment is undertaken and any necessary treatment plan implemented.

 

Types of mental health conditions and treatments

There are various types of mental health conditions which can, in broad terms, be categorised as follows:

1. ‘psychotic’ conditions, such as schizophrenia and bipolar mood disorder; and 
2. ‘non-psychotic’ conditions, such as anxiety, depression, and personality disorders.

Some of these conditions may simply arise out of a party’s genetic disposition, and others from substance-related issues (e.g., alcohol or methamphetamine, which can often lead to depression, drug-induced psychosis, and schizophrenia).

Thirdly, a combination of simultaneously occurring circumstances, e.g. redundancy and loss of a loved one can cause an individual’s emotional health to reach “tipping point”.

Treatments for these conditions naturally vary, depending on the severity and impact of the symptoms both on that parent’s ability to work and upon their day-to-day parenting responsibilities.

Such recommended treatments might include psychotherapy, counselling, behavioural modification, medication, or hospitalisation – or a combination of these.

 

Family Court Intervention

Parents with concerns about the other party’s behaviour ought to consider whether it is appropriate to seek Court intervention to protect a child from a potential ‘risk of harm’ and, if the need exists, to obtain impartial evidence to substantiate any concerns, such as: 

1. Obtaining medical expert reports and/or assessments in the form of:
   1. a report from a treating psychiatrist, psychologist, or other health professional; and/or
   2. a report from a ‘Single Expert Witness’ appointed by the Court (ie. psychiatrist, psychologist, or social worker) following upon their interviewing both parents and (if age-appropriate) the child to:
      1. diagnose; 
      2. advise on any prognosis; 
      3. recommend treatments; 
      4. provide their professional opinion on the impact of the mental health condition upon that party’s day-to-day functioning  and parental capacity; 
      5. aid communications and interactions between the parents and the child; 
      6. report on the dynamics within the family and any risk concerns; and 
      7. make recommendations as to the most appropriate care arrangements that would best protect the child from harm whilst simultaneously seeking to promote (if possible) the child’s relationship with the affected parent; 
2. Introduction of support networks for either parent and/or the child; and 
3. Seeking the appointment of a family lawyer to act in the best interests of the child (i.e., an Independent Children’s Lawyer or “ICL”).

The Family Court has the power to order that a party the subject to such concerns attend a medical expert to undergo a psychiatric assessment and treatment (e.g. psychotherapy) as part of any parenting orders. It is not, however, “automatic” for the Court to make such an order.

Orders in those terms are more likely (and may even be made by consent) if the affected parent is willing to participate in the process. Otherwise, there will need to be cogent, credible evidence to demonstrate that such an order is necessary to protect the welfare of the child.

There needs to be a proper evidentiary basis for the Court to make an Order for the assessment and treatment of an afflicted party as part of any parenting Orders.

The relevant powers available to the Court to make an Order for mental health assessment and treatment are held:

• under the ‘welfare of children power’ (Section 67ZC, Family Law Act 1975 (Cth) for married couples and Section 162, Family Court Act 1997 (WA) for de facto and same sex couples); 
• under the ‘parenting order power’ (Section 64B, Family Law Act and Section 84, Family Court Act); 
• under the ‘parenting order the Court thinks proper power’ (Section 65D(1), Family Law Act and Section 89, Family Court Act); or 
• under the injunction provisions where it is considered necessary and appropriate for the welfare of the child (Sections 68B and 114, Family Law Act and Section 235, Family Court Act). 

Outcomes in the Family Court have naturally differed over the years as to whether the consent of the relevant parent is necessary to make such an order. Some decisions have resulted in the ordering of a psychiatric assessment without that party’s consent, whilst others have not.

Determining these often-difficult cases is a discretionary exercise by the Judicial Officer in question based on the existing evidence, but is always premised on ensuring the ‘best interests’ of the child.

 

Assessment

In 2015, a practical guide to responding to family assessments was published. This arose out of consultations between the Family Court of Australia and the Federal Circuit Court of Australia (as they then were) and the Family Court of Western Australia, in conjunction with psychologists and social workers.

The resultant publication is the “Australian Standards of Practice for Family Assessments and Reporting” (“the Practical Guide”).

The purpose of the Practical Guide is to ensure good, standardised practices in conducting and reporting in family assessments; to ensure the appointed professional has suitable qualifications to assess the impacts and effects of mental health concerns (both short and long-term) on the child; and to provide the following:

1. a forensic assessment to assist the Court, the parties and the Independent Children’s Lawyer (if appointed) in determining the ‘best interests’ of the child when deciding the care arrangements for him or her;
2. an assessment of the parties’ respective parental capacities with regards to meeting the needs of that particular child; and
3. an assessment of the “risk factors” and any other matters impacting upon the welfare and parenting of the child.

If the parent with the mental health affliction has previously received treatment, it may be appropriate for either the other parent or the Independent Children’s Lawyer (if appointed) to issue subpoenas to the various mental health professionals and/or services already involved, in order to explore and confirm the extent of any historical and ongoing concerns.

 

Support

There are various support networks available for parents and children affected by mental health issues, e.g. Family Therapy with a psychologist involving both parents and the child (if sufficiently mature) to discuss and address the various risk factors and concerns. The Family Court can order such sessions to be either reportable or unreportable (i.e., to the Court itself).

The support options available to the affected parent can take the form of medication, psychotherapy, counselling, and various courses such as anger management and cognitive behavioural therapy (“CBT”). 

If, instead, it is the child who is suffering from the mental health issue, the parents (alone or together) can engage with a counsellor or child psychologist to learn strategies on helping the child manage their emotions, etc. 

There is, however, an obvious increased risk of distress, anxiety and depression to any child following parental separation. Consideration will need to be given as to whether any such behaviour is “normal” or an expected “environmental” reaction which, with appropriate support, will heal with time; or whether there are underlying or pre-existing mental health issues requiring treatment or therapy.

Either way, a decision needs to be made as to how best to protect and improve the child’s emotional health. If a child has not had a psychiatric assessment prior to separation, there is less likelihood of its being deemed appropriate to conduct an assessment of their behaviour since separation. This is particularly so in “high parental conflict” situations.

 

Key Takeaways

• In parenting disputes, one of the roles of a Family Lawyer is to consider their client’s evidence and make a general (but non-clinical) assessment of the various mental health concerns at the outset of the case, in relation to both the parents and the child.
• The Family Court will not simply assume that a parent with a mental health background is an incapable or irresponsible carer. The Court will need to be convinced that the issue is likely to have an adverse impact on the welfare of the child if left unchecked. As Family Lawyers, it is not appropriate to adopt an “entrenched” view in this regard, and parties ought not fear that disclosing a mental health issue will result in the Court automatically making an adverse finding against them. Mental health problems are increasingly prevalent in society, and it is not uncommon for both parents to suffer in this regard, albeit to differing degrees.
• Allegations about mental health made in an attempt to alienate a child from the other parent are clearly not in the ‘best interests’ of the child. In more cases than not, such behaviour ultimately tends to “backfire” on the accusing party when false or exaggerated allegations are exposed in the Family Court.
• Where there are legitimate concerns and risk issues for a child, an objective assessment ought to be made as to the parenting capacity of each parent; their attitudes towards parenting; and the effect of each parent’s emotional and psychological functioning on the child.
• Matters become problematic if the parent with the mental health issue is “in denial” about their condition, and moreso if they refuse to participate in the recommended therapy or take prescribed medication.
• There is a need to identify what treatment, therapy, or courses (for example, CBT, anger management, reducing anxiety) or other support will be of benefit to that party.
• Of overriding importance is to keep the child safe. If he or she is not at risk of physical, emotional, or psychological harm then promoting a meaningful relationship and time with both parents will be important.
• If a party’s mental health inhibits or prevents them from providing their lawyer with instructions or independently engaging with the Family Court process, there may be a question as to whether they have ‘legal capacity’. This may result in the appointment of a Case Guardian to provide that party’s instructions. 
• If the Family Court deems it appropriate to conduct a mental health assessment, there is a Practical Guide which can be referenced by the parties, their legal representatives, the Court, and any relevant health professionals. Therapeutic intervention should never be confused with the assessment and reporting process. The latter could, of course, have an indirect therapeutic effect for parents and children as a possible consequence, however, this is not generally the aim.
• It is important to promptly secure support systems/facilities in place for the parents and the child, particularly given the stress, cost and delay associated with Family Court proceedings.
• You should obtain legal advice from an experienced Family Lawyer as to if (or when) mental health is a relevant consideration in a child-related matter; to what extent this can be managed so as to simultaneously protect the child and support that parent; and to promote a meaningful relationship between the child and each party.