Introduction
Many people fear or assume that having a diagnosed mental health issue will inevitably sway child custody disputes or impact upon property settlements.
However, whilst mental health can be a significant consideration, it does not automatically determine the outcome of family law matters.
Parenting
When determining the parenting arrangements for children, the court must have the best interests of the child as the paramount consideration.
The recent amendments to the Family Law Act 1975 aims to place the best interests of the child at the forefront of judicial decision making by considering the factors in section 60CC(2):
a) what arrangements would promote the safety (including safety from family violence, abuse, neglect or other harm) of the child; and each person who has care of the child.
b) any views expressed by the child.
c) the developmental, psychological, emotional and cultural needs of the child.
d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs.
e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so.
f) anything else that is relevant to the particular circumstances of the child.
These factors operate in no particular order of priority, which means that the court can have greater regard to the specific circumstances of each case and consider all factors. If concerns are raised in relation to a parents’ mental health, the court will consider this in the context of the section 60CC(2) factors.
The court will consider the diagnosis and behaviours to assess parental capacity and the level of risk of harm to the child and weigh up the benefit of the child having a relationship with both parents against any possible risk of harm.
If a parent’s mental health cannot be managed in a way that supports their capacity as a parent or they are not complying with recommended treatment, this may impact upon the court’s decision in parenting matters.
However, having a diagnosed mental health issue will not immediately result in a negative outcome in parenting matters, as long as the child is not exposed to harm and the parent can manage their mental health in a way that supports their capacity as a parent.
Property Settlement
In relation to property settlements, the mental health of the parties can be relevant in determining the contributions made to the relationship and the future needs and earning capacity of each person.
If, for example, one party has a serious mental health issue that has been diagnosed by a qualified expert and which reduces their capacity to work or obtain employment, it is possible that a percentage adjustment of the asset pool or spousal maintenance will be awarded in favour of that person.
Divorce
In Australia, divorce is governed under a no-fault system, meaning that the legal process does not require proof of wrongdoing or cause of the breakdown of the relationship.
As long as it can be proven to the court that the relationship has broken down irretrievably, which is generally demonstrated by a period of separation of 12 months before filing for divorce.
Family law disputes can be highly emotional and often overwhelming for anyone involved. If you are dealing with a family law dispute, it is important to have a trusted support network during this time.
If you are struggling with your mental health, please seek relevant medical attention where necessary or reach out to the many support services, some of which can be found on our website, who can assist you during this challenging time.
If you need advice on the implications of mental health issues in family law, our team are here to help.
Call us today on (02) 8999 1800 or email team@cominoslawyers.com.au.
Disclaimer
The content provided is general information and is not intended to be relied upon for legal advice.