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Divorce and Mental Health: What to know about separation and parenting where there are mental health concerns

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In recent years, mental health concerns amongst Australians and the rest of the world have increased substantially. Recent research in Australia, conducted by the Australian Bureau of Statistics found that 15% of Australians between the ages of 16 and 85 experienced high to very high levels of psychological distress in 2020-21. The same study found that 13% of Australians consulted a GP for mental health-related issues, while 8% saw a psychologist.

There are many possible reasons for this increase, some of which include: stress associated with climate change, increased cost of living and of course, the COVID-19 pandemic. See, for example, a recent article published by the World Health Organisation attributing a 25% increase in anxiety and depression to the COVID-19 pandemic.

While events and circumstances such as these affect the world at large, we know that (closer to home) a separation or divorce is one of the most stressful life events a person can experience. And for those already experiencing difficulties with their mental health, separation can exacerbate these pre-existing issues. 

Mental health challenges affect everyone. Whether it is you or your former spouse that is facing mental health challenges, we have compiled our insights below to help you effectively manage and work through the separation and divorce process.


Mental health during separation

Making decisions in the context of a strained relationship, can have a significant impact on your, or your ex-partner’s, mental health. And in the event of a high conflict separation, this will only be exacerbated.

Navigating a separation can be overwhelming as additional pressures arise concerning decision-making for finances and/or children. Often, these decisions were made with relative ease during the relationship but become more difficult after separation. This is often the case whether you are the person who made the decision to separate or not.

Where children are involved the impact on your own mental health can increase as you do what you can to shield your children from the stresses of separation. If you recognise your mental health is suffering, temporarily or otherwise, it is crucial to seek advice and/or treatment from your GP, psychologist or counsellor to help you during this time. The benefits may extend not only to you, but also to your children.

We recognise that some people going through separation may shy away from seeking treatment, thinking to themselves “but, what will happen if it is used against me?” While it is understandable to hold these concerns, you should not let these hinder your ability to seek help, particularly where that help may be desperately needed. You should be reassured that the Court recognises the difficultly of the legal processes and appreciates the impacts that it has on a person’s mental health.


How the Court considers mental health in family law matters

The mere existence of a mental illness or health issue does not prejudice you in Court. Rather, it is the impact that the illness has on your children, and the steps which you might have taken to manage that illness which is the Court’s focus.

As a matter of principle, the Court recognises the importance of both parents in their children’s lives. The Family Law Act of 1975 empowers the Court to make parenting orders that promote the children’s best interests. These may include provisions such as:


  • The children continue to have a meaningful relationship with both parents; and
  • Both parents continue sharing the responsibility of caring for the child


However, it is important to know that the Court gives greater weight to the need to protect the children from harm (physical and psychological). In other words, the Court considers your capacity to parent as a whole. If the Court has reason to believe you’re managing your mental health issues or illness well, and it poses no threat to your capacity to offer the children emotional and physical parental care, there is no reason why the mere existence of a mental health issue would prejudice you in court. On the contrary, the Court can look favourably upon parents who acknowledge any mental illness or issues, especially where it is demonstrated that those conditions are under control or you are otherwise taking steps to manage the condition.

If the Court has concerns about the risk to children in relation to a parent’s mental health, the Court may direct that the children have time with one parent in a safe environment under the supervision of someone else. In extreme cases the Court may also suspend the children’s time with a parent if the Court has evidence that the children would be at risk due to the parent’s mental incapacity. Restrictions such as these may be temporary or ongoing.

Overall, the Court will prioritise the best interests of your children. In determining the children’s best interest the Court will have regard to the benefit to your children of having a relationship with each parent, even if there is an existing mental health issue. If that mental health issue is under control and not having an impact upon your children, there is no need for your mental health to become a factor in determining parenting arrangements.


Seek support

Now that you are aware of the legal side of this issue in the family law context, do not delay in seeking support. Feeling anger, frustration, sadness, grief, etc is to be expected when going through a separation. However, if the feelings interfere with your ability to perform your day-to-day activities, this is a sign to take steps to seek help.

If you are having trouble sleeping or concentrating, constantly irritable, anxious or moody, we recommend you speak to your GP about your situation. And, tap into your network of family and friends for support.

The separation may also be stressful for your children. Usually, their ability to cope is influenced by their age, temperament, and importantly, the level of cooperation or conflict between you and your ex-spouse. If the children have a challenge dealing with the stress, you may also need to get them help. Some organisations to consider include; Headspace, Kids Helpline, and Reach Out.

It can take time to get referrals or an appointment and hesitating to make arrangements means it takes more time to get on top of your situation. If you identify that you might be struggling, to help you bring the situation under control and avoid any harm it may pose to your children, do not hesitate to arrange a time with your GP or other health professional.


What to know if you think your ex-partner might be struggling

It is important to be mindful that your ex-partner’s experience will likely be similar, if not the same, as you. Though of course we appreciate that there are circumstances where this might not be the case.

Where possible, aim to make the process as constructive and co-operative as possible. Refrain from unnecessary hostility which can only worsen their situation, and yours. This is all the more important where children are involved as there will be a flow on effect. If it is your former partner or spouse who is, or you suspect might be, struggling with a mental health issue, know that in many cases mental health issues can be managed or resolved.

Where it is safe for them, children being able to have time with both of their parents, and have a meaningful relationship, is the goal. However, if you suspect that it might be potentially unsafe for your children to be in the care of their other parent, we strongly encourage you to seek the advice of a family lawyer and in extreme circumstances know that you can always phone the Police on 000.


Managing separation, divorce and mental health

If you are struggling with mental health challenges during your separation, or you think your ex-partner might be, seeking legal advice from a family lawyer will be highly beneficial.

One appointment may be all you need to get the tools to understand the range of legal outcomes available to you, or even how you can initiate a constructive negotiation yourself. Some of our clients call on us because the situation is negatively impacting their mental health and they want the benefit of having a family lawyer step in to communicate on their behalf, alleviating the pressure placed upon themselves. In either case your family lawyer will be able to provide you with a range of information and available services to assist you to deal with mental health issues affecting you or your family.

Sometimes clients do not engage a lawyer until their situation has significantly deteriorated. In cases such as these, clients may have agreed to arrangements which are disadvantageous to them or their children. This can leads to matters ending up in Court for a second time around, with costs mounting. This situation will inevitably cause additional stress, an escalation of conflict and potential exacerbation of mental health issues.

Obtaining advice early in the separation process means that clients have a better chance of managing the process smoothly, and avoiding any unnecessary stress.

If you are facing mental health challenges yourself, or are separating from a spouse who is facing mental health challenges, seek out the support you need. Early advice and appropriate support with mental health during divorce will assist to minimise any negative impacts and provide a basis for achieving better outcomes for you and your children.


Related Articles: Dealing with divorce with children: 7 tips to minimise the impact on children

Separation and parenting: What is a parenting order?


DDCS Lawyers specialise in all aspects of family law and can help guide you through the separation process where there are mental health concerns. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.