I have Depression and Anxiety – Does this Mean I Won't Get Time with the Kids?

In any one year, around 1 million Australian adults have depression, and over 2 million experience anxiety.[1] We come across many parents who have previously experienced, or are currently experiencing, depression and / or anxiety. What impact does this have on your parenting matter?

The answer is; it depends on your specific circumstances. Generally speaking, anxiety and depression should not preclude you from having care of, or spending time with, your children. The court will be looking to see whether your mental health issues pose an "unacceptable risk" to the children.

"Unacceptable risk" refers to any serious concern the court may have in relation to the welfare of your children in your care. This will therefore depend on the extent of your mental health condition, the way that it may impact upon your parenting and whether you are undergoing treatment. The test is whether the risk to the children outweighs their right to have a meaningful relationship with you.[2] The paramount consideration is always the best interests of the child.[3]

In the Family Court interim hearing of Anderson & Jones,[4] the father raised concerns about the mother's capacity to properly care for the child. The mother had admitted to having obsessive compulsive disorder, severe post-natal depression and anxiety. The mother had been involuntarily hospitalised twice in the previous year, and had left hospital contrary to medical advice on one occasion.

The Judge was looking to see whether the nature of any of the conditions of the mother posed a risk to the child, or, if untreated, would constitute a risk. The father had in fact left the area where the mother had been living with the child at the time of separation. The Judge found that the father's actions demonstrated that he did not have any immediate concern for the safety of the child.

The mother was engaged with a psychiatrist and a mental health nurse. The Judge found that there was no evidence to cause any serious concern about the welfare of the child in the mother's care. The child was allowed to remain living with the mother. This decision was made on an interim basis and based upon the evidence the Judge had at that time.

The court will use its discretion in determining whether any "unacceptable risk" is present. General cases of anxiety and depression are not reason to stop one parent from having care of, or spending time with, the children. It is important that you seek or continue to engage in treatment for anxiety and/or depression even if you are involved in a court case about parenting after separation.

If you would like any advice about parenting following separation, feel free to call us on (02) 9440 1202 to speak with one of our family lawyers.

[1] Australian Bureau of Statistics. (2008). National Survey of Mental Health and Wellbeing: Summary of Results, 2007. Cat. no. (4326.0). Canberra: ABS. 

[2] See section 60CC(2) of the Family Law Act 1975 (Cth).

[3] Section 60CC Family Law Act 1975 (Cth).

[4] [2011] FMCAfam 519 (25 march 2011).