In all cases, the paramount consideration for the courts when considering whether to make a particular parenting order remains what is in the best interests of the child. In most cases, this will mean ensuring that the child is able to have or develop a meaningful relationship with both parents.
This must, however, be considered together with the other primary consideration (to which greater weight is given) which is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Where a parent suffers from mental health issues, any related risk of harm to the child and measures to contain that risk will be closely considered when the Court is considering what parenting orders are to be made.
In the case of Furlan & Furlan & Anor  FCCA 3157 (16 November 2018) the Federal Circuit of Australia involved parenting proceedings where the Mother had received a mental health diagnosis. The mental health issues were Bipolar Affective Disorder (Differential diagnosis – Schizoaffective Disorder) and Attention Deficit/Hyperactivity Disorder (ADHD). The Mother was medicated and willingly accepting the medication.
Even though the Mother suffered mental health issues, this did not prevent the Court from making orders as had been sought by the Mother and the independent children’s lawyer that the children live with the Mother and spend time with the Father.
The presiding judge said that the main issue in the parenting proceedings was whether the Mother poses an unacceptable risk to the children, arising from her mental health issues if the children live with her.
In considering whether there was an unacceptable risk posed by the Mother’s mental health issues, the Court considered a previous High Court judgement which stated that the unacceptable risk formulation requires two separate steps:
1. Is there a risk?
2. Is it unacceptable?
The Court said in effect that it was all about balance. In some cases, a risk is ‘acceptable’ when it is balanced against other factors and other orders that a Court puts in place. The presence of safeguards may convert what would otherwise be an unacceptable situation to an acceptable one with benefit to the child.
Is there a risk?
The Court stated that the risk to the Children is the possibility of psychological harm and neglect as a result of the Mother suffering a relapse in her mental health issues.
What is the probability of this outcome coming about?
Medical evidence was given to the effect that statistically, people with bipolar disorder are likely to have relapses. However, it was difficult to say in an individual case, when such a relapse/s was likely to occur. It was very hard to predict whether or not in a given case a person would cease to have episodes after treatment. It was therefore impossible to determine what probability there was that the Mother would suffer a relapse in her mental health.
Other medical evidence given was to the effect that it was not necessary that the Mother continue to live with her parents and that the Mother did not present as a risk to the children.
The Court was mindful that the Mother agreed to continue living with her parents for a further period of 6 months following the trial. Given that, the Court took the view that the Mother living with her parents would increase the likelihood that her parents would become aware if there was any decline in the Mother’s mental health.
The Court was satisfied that Orders were appropriate requiring that the Mother live with her parents for that period; that she subsequently live within a 10 kilometre radius of her parents’ home and continue her medical treatment with reporting from her mental health practitioners.
By including those safeguards, the Court was satisfied that the possible risk to the Children of a decline in the Mother’s mental health issues was balanced with the benefit to them of an ongoing relationship with their Mother.