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World Mental Health Day - Recognition of Mental Illness in Family Law

World Mental Health Day - Recognition of Mental Illness in Family Law

It’s World Mental Health Day

On 10 October, millions of people around the world will take a moment to observe World Mental Health Day. A day which calls us to recognise and analyse the level of support we give to mental health issues, which, according to The Australian Bureau of Statistics, an estimated 45% of Australians experience in their lifetime.

Separation and divorce are among life’s most devastating and troubling experiences. Before someone has even digested the fact that they are separated from their former partner (let alone the consequences), they can be hurled into a Family Law storm of valuing and dividing assets, making long term decisions for their children, or attending Court hearings and building affidavit material that sets out, in intimate detail, their life with their former partner, which is being scrupulously analysed by lawyers and judges alike.

The process is more than overwhelming for even the most emotionally resilient person.

It is no surprise, then, that the Family Court often finds itself dealing with cases in which someone suffers from a mental illness. Not just in circumstances where a person has already existing mental issues, but also in circumstances where the separation and stresses of family law issues have triggered, or intensified mental health issues.

Mental illness and the experience of separation and Family Law proceedings are not just distressing for the separating couple, it can also have a large impact on children and extended family and friends, who are, more often than not, called upon to provide support.

So, in light of World Mental Health Day, we ask, what do Family Lawyers do, and what does the Family Court do, to support, those suffering from a mental illness in the event they become involved in a Family Law dispute?

In parenting cases, all parties and their lawyers are specifically called to adhere to the overarching legal principle that the best interests of the child are paramount whether or not they are litigating in the Family Court. Section 60CC of the Family Law Act 1975 (Cth) sets out “How a court determines what is in a child’s best interests” which includes considering “the needs of the child, including emotional and intellectual needs”. In circumstances where a parent suffers from a mental illness, the Family Court will assess the mental illness having regard to the benefit to the child of having a meaningful relationship with them (which is one of two primary considerations under Section 60CC)and that parent’s ability to care for and/or interact with their child.

In financial cases, mental illness arises as a consideration in working out a person’s future needs – which will have an impact on the overall division of property.

In both parenting and financial cases:

  1. the Family Court has a heightened duty to carefully consider any decisions to protect vulnerable people and to do their best to ensure that there is a level playing field. Further, the Family Court protects mentally ill people in that the Court will only ever make orders that are just and equitable in property proceedings, and in the best interests of the child in parenting proceedings.
  2. it may be that the person suffers from a mental illness to such an extent that they do not have the mental capacity to “understand the nature and possible consequences of the case and are not capable of conducting the case”. In those circumstances, the Family Court can appoint what is known as a Case Guardian. In most cases, the Case Guardian is someone that the mentally ill person knows and trusts. Their job is to essentially step into the mentally ill person’s shoes to conduct Family Court proceedings on their behalf. Consistent with the principle that the Family Court has a heightened duty to protect the rights of vulnerable people, if a Case Guardian and former partner reach an agreement, the Case Guardian is required to swear an affidavit to the Court setting out why the agreement is in the mentally ill person’s interests. The Family Court can either reject or accept the agreement.
  3. the Family Court has wide reaching powers to make orders in respect of expert evidence i.e. reports and statements from medical professionals including child psychologists. In cases involving mental health issues, the Court will rely heavily on medical evidence, and not the opinions of people who are not qualified to give such opinions.
  4. Family Lawyers should be equipped with the skills to resolve any dispute as expeditiously as possible, to prevent a dispute from escalating and from having a greater impact on a person’s mental health. This includes considering alternatives to the Family Court, such as informal conferences and mediation, possibly with medical experts and/or counsellors present.
  5. Family Lawyers should also familiarise themselves with various mental health issues. This is so they can: 
    1. readily identify those issues when they present themselves; and
    2. deal with and present the case in a way that takes a person’s symptoms into consideration.
  6. Family Lawyers should also familiarise themselves with specialists and counsellors that they can recommend to clients who may be suffering from a mental illness.

We all need to spread the word about World Mental Health Day and be charitable. This month at Butlers we will be raising money to make a donation to Beyond Blue (, an organisation that assists people suffering from anxiety and depression. Like many other organisations like it, Beyond Blue helps many struggling with the pressures of Family Law matters.

If you’re suffering from mental health issues, here are a few numbers with people on the other end that are willing to help you:

  • Lifeline 13 11 14 (24 hour crisis line.)
  • Kids Helpline 1800 55 1800 (Free call except from some mobile phones. For ages 5 to 25 years, 24 hours a day, 7 days a week.)
  • Dads In Distress Helpline 1300 853 437 (Cost of a local call. 24 hours a day, 7 days a week.)
  • Suicide Call Back 1300 659 467 (Cost of a local call. 24 hours a day, 7 days a week.)
  • SANE Helpline 1800 18 SANE (7263) (Information and advice. 9am – 5pm weekdays.)
  • Parent Help Centre Western Australia (08) 9272 1466 or 1800 654 432 (Free for STD callers. 24 hours a day, 7 days a week.)
  • PANDA’s Helpline (Post and Antenatal Depression Association. 1300 726 306 9am to 7pm (AEST) Monday to Friday.)
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Guest - Guest on Monday, 06 October 2014 09:03

Great to see this kind of support.

Great to see this kind of support.
Guest - Ravi on Monday, 06 October 2014 12:56

Very informative and thoughtful. Thanks Sophia!

Very informative and thoughtful. Thanks Sophia!
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