|6th World Congress on Family Law and Children’s Rights
17-20 March 2013, Sydney, Australia
Mental Health in the Australian Family Law Context: Clinicians and Practitioners Building Bridges Together
Louise Salmon BSW(Hons), Rhondda Matthews BSocSci, BSW
In Australia mental illness is understood far more and stigmatised less in the 21st century than it was in the previous century. However, the ramifications and everyday reality of children’s lives and how parental mental illness manifests at home still often remains largely hidden to the outside world. For those with first hand experience, mental ill health in the family often remains a family secret; a painful source of embarrassment, guilt and blame.
The repercussions on a child whose parent has a mental illness are not fully understood and are likely to vary considerably. Recently, research into the perspectives of children who identify themselves as “carers” of parents with a mental illness, highlights that the majority of such children provide practical and emotional support to their parent and feel isolated, anxious and stressed in this role. The majority report a negative impact on their school studies.1
At international and national levels, public mandates exist to assist these often invisible children. It is internationally recognised, for instance, as embodied in the terms of the Convention of the Rights of the Child (1990), that children who live in exceptionally difficult circumstances, as can happen when their parent suffers from a mental illness, need “special consideration”. It is acknowledged that a child, “for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding”.2
In the legal context, the Australian Family Law Act 1975, sets out that a Court must have regard to the best interests of the child as the paramount consideration.3 The widest meaning of this term has been shown to encompass the needs of children who have a parent with mental illness. At the national level, the Children of Parents with a Mental Illness, known as COPMI, National Initiative4 was established in 2002 by the Commonwealth Government to raise community awareness and educate parents, children and professionals about the experiences and needs of such children.
Mental Health, Psychological Difficulties and Mental Illness
Mental health is defined by the World Health Organization (WHO) as “a state of well-being in which the individual realises his or her abilities, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to his or her community”5. Emotional and psychological difficulties are common to everyone and may be temporary, accompanying, for example, a negative or stressful life event. Separation, divorce and disputes within the family law context would generally constitute such life events, and while such difficulties can often constitute extreme emotional crisis, these can be differentiated from severe mental illness.
More severe mental health problems, diagnosed as mental disorders or mental illnesses, are not part of normal development and cover a wide range of conditions such as depression and other mood disorders, anxiety disorders, schizophrenia and other delusional disorders, personality and developmental disorders.
Long term mental illness is costly to individuals, their families and society, being commonly associated with higher rates of physical ill health, premature mortality and disengagement from family and community life and the labour market.
Prevalence of Mental Illness
The available statistics as to the prevalence of mental illness in Australia tend to measure different definitions of mental illness.6 It is estimated that 45% of Australians experience mental illness in their lifetime, and one in five in any given year.7 Up to one in five children live in families in which a parent has a mental illness.8
In one Family Consultant9 caseload during 32 initial meetings with parents for the first eight months of 2012, almost 100% of one or other parent (or both) said that poor mental health was an issue for them or their former partner. When asked more specifically about medical interventions, about 66% of mothers and 89% of fathers identified specific mental health interventions or diagnosis as issues. These percentages are in a far greater proportion than is reported by the general community and earlier research findings within the Family Law Courts.10
Of particular note is that, when asked specifically about perinatal health, approximately 33% of mothers and 33% of fathers identified the mother as suffering from postnatal anxiety and depression. The estimate of these mental health problems in the broader community is around 20%.11
Mental Health Difficulties and the Crisis of Separation, Loss and Grief
The process of relationship breakdown is a life crisis that involves loss and associated grief on many levels. There is not only the loss of a partner but potentially many associated losses, such as; self esteem and worth, identity as a couple, financial security, a family home, friendships, extended family, the transition of living alone or only with children on a daily basis. While some parents may smoothly navigate the unfamiliar terrain of becoming a single adult and separated parent, for many this is a time when emotions may fluctuate widely from day to day or from week to week. It may be several years before an individual feels emotionally “normal” again.
The work of Professor Elizabeth Kubler-Ross is a useful framework for considering the emotional roller coaster of separation. In On Death and Dying,12 Kubler-Ross developed the thesis that, when confronted by catastrophic loss, individuals will experience a series of emotional "stages": denial, anger, bargaining, depression, and, acceptance (in no specific sequence). The stages are:13
Denial. "I feel fine."; "This can't be happening, not to me."
Denial is usually only a temporary defense for the individual. Denial is a defense mechanism and some people can easily become locked in this stage.
Anger. "Why me? It's not fair!"; "How can this happen to me?"; '"Who is to blame?" Anger can manifest itself in different ways. People can be angry with themselves, or with others, and especially those who are close to them. It is important to remain detached and nonjudgmental if possible when dealing with a person experiencing anger from grief.
Bargaining. "I'll do anything for a few more years." This stage involves the hope that the individual can somehow postpone or delay the catastrophe. In relation to death, psychologically, the individual is saying, "… if I could just do something to buy more time..." People facing less serious trauma than death can bargain or seek to negotiate a compromise. For example "Can we still be friends?" when facing a separation. Bargaining rarely provides a sustainable solution.
Depression. "I'm so sad, why bother with anything?"; "What is the point to anything?” During this stage, the individual may become silent, refuse to socialize and spend much of the time crying and grieving. It is natural to feel sadness, regret, fear, and uncertainty when going through this stage. Feeling those emotions shows that the person has begun to accept the situation but also places them at risk of harm to themselves or another as a way of dealing with the emotional pain.
Acceptance — "It's going to be okay."; "I can't fight it, I may as well prepare for it." In this stage, individuals begin to come to terms with the loss. This stage varies according to the person's situation.
In the crisis of separation, seldom do individuals move through the grief process at the same rate. For instance, one individual may enter the stage of acceptance well ahead of the other. One individual may experience a greater depth of depression than the other. Moving through the stages is imperative to an individual’s longer term emotional health. Becoming “stuck” can absorb an individual’s emotional energy and lead to pathological grief and mental illness.
Children, Loss and Grief Children may experience their parents’ separation as a set of losses with an associated grief process. Children can mirror a similar loss and grief process as their parents. They can also become entrenched in taking sides with their parents’ views and feel polarised. Children’s feelings may manifest in a number of ways which can be divided broadly into a range of problems, particularly anxiety and depression or problematic or risk taking behaviour.
At a time when children may most need their parents’ support and attention, separating parents may be emotionally less able to help them. Children’s needs at these times can be invisible to parents. In some cases, parents may inadvertently exacerbate the emotional difficulties their children face. Assistance and support from outside of the family may be of benefit to the children.
Mental Illness and Parenting
A parent’s mental ill health can compromise their ability to care for and interact with children. For example, fathers with depression spend less time with their infants than fathers without depression.14 There is also evidence that anxious parents are less likely to grant their children autonomy and more likely to demonstrate lower levels of sensitivity.15 Other research indicates that there is a significant association between maternal mental illness (including schizophrenia, major affective disorder and bipolar disorder) and permissive parenting (for instance, lack of parenting confidence or lack of follow through), as well as verbal hostility.16 Children of parents with psychosis might be directly involved in a parent’s delusions.17
Particular aspects of the family context, when mental illness is an issue, may influence the level of protection for and/or risk to the children. These include the presence of conflict between parents, violence, the availability or absence of the other parent, the mental well-being of the other parent, and the social support available to the family. For example, a supportive father can successfully buffer the negative impact of a mother with depression.18 Factors associated with successful parenting outcomes for children whose mothers have schizophrenia are stability within the family and access to financial and social resources.19 Conversely, stability within the family might be threatened by the hospitalisation of the parent (for their illness), particularly if children need to relocate to live in another household.20
A child whose parent suffers from a severe mental illness is at a particular risk of developing mental health problems themselves. For instance, children of bipolar parents are at increased risk for mood and other disorders, including substance misuse, ADHD, conduct disorder and oppositional defiance disorder.21 Anxiety disorders in parents, including generalised anxiety, post-traumatic stress disorder, panic disorder and social anxiety have been found to affect their children. Such affected children are twice as likely to develop an anxiety disorder themselves, including a propensity towards social phobia and separation anxiety disorder.22 In one such study conducted over 20 years, children of a depressed parent were found to be three times more likely to be at risk of suffering depression, anxiety and substance dependence when compared with those whose parent had no diagnosis.23
Studies of parents with a personality disorder indicate that children whose mother had borderline personality disorder displayed increased impulsivity, an inability to name and modulate affect, internalised negative self-attributions,24 and a disorganised pattern of attachment.25
Particular Vulnerabilities of Babies and Toddlers
Babies and toddlers are special groups among the Family Law Courts’ clientele given the rapid social, emotional and cognitive development of infants in a sometimes slow moving legal system.
A primary carer with a mental illness may experience difficulty registering or attending to their infant’s needs or have difficulty being consistent and available; some may be overly intrusive or at times threaten the survival of their infant, for instance, when the infant is incorporated into a carer’s delusions or hallucinations.26
If a parent is emotionally or physically unavailable, research suggests that the presence of another available caregiver, for example the other parent, may buffer the impact on the infant.27 There is a high prevalence of attachment disturbances described in the children of depressed mothers.28
Mental Illness in the Australian Family Law Courts
In the Family Law Courts’ context, parental conflict is generally high and family cohesion is low. These factors, combined with the grief of the separation and stress of combative adversarial proceedings, are likely to protract the normal emotional processes that are associated with separation or they may exacerbate already existing mental health problems.
It is difficult for parents to progress through the stages of grief when engaged in a dispute with each other that entails, for instance, Court appearances and the creation of affidavit material against their former partner. A Court experience that negates the exacerbation of the stages of grief or entrenched mental illness is in the interests of parents and their children.
Practice in Australian Family Law Courts
People can lodge an application regarding the future care of their children through either The Federal Magistrates Court or the Family Court of Australia. Applications filed after 1 July 2006, asking the Court to make orders about children, involve a less adversarial process. Although each Court offers different programs, the pathway followed can be similar. Many matters involving children (where parents cannot agree on future care arrangements) involve an initial assessment and screening event with a Family Consultant.
Family Consultants hold qualifications in psychology or social work and have extensive experience working with children and families.
Initial assessment includes assessment of protective and risk factors for all members of the family with paramount consideration given to the child/ren. Family Consultants ask a series of screening questions during their initial and ongoing contact with families. These screening questions involve questions about violence, drug and alcohol use and mental health and were developed through research and pilot programs and have been found to elicit critical information used for assessment.
For the purpose of this paper, concerns about mental illness will be the focus although it is acknowledged that often more than one risk factor exists in the families who present to the Courts.
The Court becomes aware of concerns about a parent’s mental ill health by a parent raising a concern directly with the Court, or during assessment by Court staff. This could be a clerical officer, Registrar, Judge, Federal Magistrate or a Family Consultant.
Concerns raised in the Court regarding mental illness can range from mild to significant, including situational (generally short term) to severe long term mental illness. In some cases there will have been a diagnosis made at some stage and in others no diagnosis exists. The response by the Court will be determined by the presenting issues.
Case study 1:
The presenting issue was post-natal depression. This matter was dealt with in the Federal Magistrates Court. The Court ordered the parents to attend a Child Dispute Conference where they were interviewed on one occasion by a Family Consultant. Child Dispute Conferences are held over a two to three hour period where the Family Consultant may read affidavit material, will interview both parents and must write a memorandum for the Court.
The children were aged four and six years. Both parents wanted the children to live with them predominantly and spend some time with the other parent. They had been separated for six months but were still living in the same home. The conflict between the parents had escalated and it was clear that one or other parent should move out of the house so that the children would not be exposed to the conflict between them.
The parents had adopted traditional parenting roles with the father working outside of the home on a full time basis and the mother caring for the children at home. Both parents agreed that the father took an active role in parenting when he was at home, providing hands on care for the children. Both parents agreed that the children had a good relationship with each parent.
The father raised concerns about the mother’s mental health, suggesting that she may have post natal depression. He said that she had been a happy, confident person prior to the birth of the first child but seemed depressed and “cranky” after the first child was born. He described the relationship between him and the mother as deteriorating over the following years and said that the mother also withdrew from friends and family. The father said that the mother rarely went out and he felt that she relied on the children to meet all of her emotional needs and for social interaction. He was concerned about the long term impact on the children of spending too much time with the mother, specifically because of their need to become more independent and because of the potential for the children to develop a sense of responsibility for their mother’s health or happiness.
The mother was very teary during the initial assessment. She said that she could not cope without the children and tended to focus on her own needs rather than the children’s. The mother said that she did feel sad a lot of the time (except when with the children) but had not sought medical intervention.
During the Child Dispute Conference the Family Consultant suggested that the mother consult a doctor (General Practitioner) to discuss a mental health plan and referral for psychological assessment. This was ordered by the Court after the Child Dispute Conference. The parents were assisted to develop interim parenting arrangements during the conference and the children were to see each of them almost every day.
The matter returned to Court after about six months and, during that interim period, the mother had been assessed and had been diagnosed with post natal depression. She developed a support plan with her GP and decided to participate in counselling rather than take medication. The mother appeared to have made some significant changes to her life and had begun spending time with extended family and friends. She seemed to have developed some insight into the impact of her emotional equilibrium on the children and the father said that he had noticed a marked improvement in the general mood of the mother and the children and improvement in the relationship between himself and the mother. The parents decided not to enter into Court orders but rather to engage with a community organisation that would support an ongoing review of their parenting arrangements and offer guidance.
Case study 2:
The presenting issue was situational depression. This matter was dealt with in the Federal Magistrates Court. The Court ordered the parents and the children to attend a Child Inclusive Conference. Child Inclusive Conferences are held over a full day (seven hours) where the Family Consultant may read affidavit material, will interview both parents and interview and/or observe the children with both parents and must write a memorandum for the Court.
Both parents wanted the children to live with them and spend time with the other parent every second weekend. There were three children in the family aged 11, 13 and 17 years. The parents had been separated for six months. The 17 year old was living with the father and the 11 and 13 year old were living with their mother. The 11 year old was spending every second weekend with the father and the 13 year old was spending time with him sporadically.
During interviews the children indicated that they had good relationships with each parent and were happy with the current arrangements. The mother said that she was satisfied with the current arrangements but raised concerns about the father’s mental health. She was concerned about the extent to which the father talked to the children about the end of the marital relationship and what she perceived to be his lack of acceptance that the relationship was over.
The father’s presentation was of concern to the Family Consultant. He appeared extremely flat but also appeared distressed a number of times during the interview. He did not think that he had a good relationship with the younger children because they did not live with him. The father was pessimistic about his future in general and about his future relationships with the children. He said that he wanted to reunite with the mother. The father indicated that he had little support and acknowledged talking to the children often about how sad he felt. The Family Consultant was concerned about the father’s potential to harm himself.
The Family Consultant suggested that the father seek support and assisted him to engage with the referral service attached to the Court. The referral officer gave the father contact details for services such as Relationships Australia, Dads in Distress, Unifam, Catholic Care and Suicide Call Back. She assisted him to make immediate contact with staff from some of the agencies.
The focus of the intervention became the father’s mental health rather than how much time the children were to spend with either parent. The father was advised to consult his local GP for a mental health assessment and to engage with the services identified by the referral officer.
The matter has not returned to the Court.
Case study 3:
The presenting issue was a diagnosed long term mental illness, Major Depressive Disorder, Recurrent Type. This matter was dealt with in the Family Court of Australia and, in the first instance, the family was ordered to attend the Child Responsive Program. During the Child Responsive Program parents are interviewed in separate two hour appointments and the child/ren are interviewed/observed with the parents about a week later over a four hour period. The Family Consultant then provides the Court with a brief written assessment of the relevant issues in the matter. In this case, the matter was not resolved during the Child Responsive Program and the matter was referred to the first day of the Less Adversarial Trial (LAT). The Judge then ordered a Family Report be prepared. Family Reports are written after the Family Consultant interviews the parents and the child/ren, any practitioners who have been involved with the family and relevant extended family members. The Family Consultant will read all of the affidavits and subpoena material before completing the report and making recommendations for the child/ren’s future care.
In this matter the parents had been separated for about nine years. The child was three years old at the time of separation and 12 years old at the time of interviews. The father wanted to spend unsupervised time with the child. The mother did not want the child to spend any time with the father at all. There had been some violence in the relationship and the child had not seen her father for about two years.
The father had attempted suicide before he met the mother and again after the relationship began. He had a history of non compliance with medication. The child had spent some time with her father in a contact centre but had found that stressful at times and, at other times, “boring”. She was aware that her mother did not want her to spend time with her father and she had not developed a strong enough relationship with him when she was younger for her loyalties to feel challenged. The child was somewhat reluctant about spending time with her father. The mother and the child had a reasonable relationship with the extended paternal family.
After the initial assessment the Family Consultant recommended that an evaluation be conducted by a psychiatrist, specifically requesting that the psychiatrist comment on the father’s current mental health and prognosis, including the likely outcome of the father complying with his medication regime. The assessment was completed and the Court was advised that the father was currently well and had been complying with taking his medication, for the previous two years. The psychiatrist also said that, should the father not comply with taking his medication, there was a significant risk that he would experience very severe depression which could lead to further suicide attempts.
These concerns were taken very seriously by the Court and the Family Consultant recommended that the child see her father monthly under the supervision of an extended family member who had given undertakings to ensure that the child would not be exposed to her father should he become ill.
Practitioners in the Field of Family Law Practitioners in the field of family law are in a pivotal position, at a time of crisis, to assist parents with a mental illness, and therefore their children, to most successfully navigate the foreign terrain of family law disputes.
Family violence can lead to mental ill health. The stress of ongoing abuse can lead to a victim developing mental illness, such as anxiety and depression, or exacerbate pre-existing conditions. Some clients may exhibit aggression related to a mental illness. Practitioners should place family safety as a priority of their service.
The negative repercussions of stigma and disadvantage usually associated with mental illness have historically presented clients with difficulties in disclosing their mental health problems. This applies, in particular, to clients not disclosing to legal professionals for fear of negative outcomes for themselves or their relationships with their children. Legal practitioners should not always assume that their clients will inform them of vital information concerning a diagnosis of a mental illness, their treatments or medication.
For even the most resilient of individuals, separation and ongoing parental conflict has repercussions for a parent’s emotional well being. Thus, families in which mental illness is an issue can be best supported by practitioners and other professionals who:
understand the grief process and the likely impact upon a parent’s mental health and behaviour, especially the potential for angry and depressive actions towards themselves or others
are familiar with mental health conditions and how these may impact upon parenting and children, especially that anger is a feature of the grief process and also a number of mental illnesses
know their clients and children in a holistic way rather than attempting to understand them primarily as individuals suffering from a mental illness
are prepared to talk to their clients about mental health and are mindful of the possible emotional impacts on their children
attempt to resolve the dispute early to prevent the escalation of the dispute and, therefore, exacerbation of mental health problems
Positive parenting arrangements and agreements that are in the children’s best interests are most likely to be achieved when parents are able to communicate and participate in assisted negotiation and community mediation. However, mediation is clearly not always appropriate, particularly when there are risks to children. At times it may be that a Judicial Officer of the Court is the individual who makes a decision about arrangements for children who are subject to Court proceedings. In this situation, practitioners can facilitate the best possible outcomes by;
respecting the children’s need for as non-combative a resolution as possible (even if their client is themselves particularly prone to engaging in conflict)
remaining calm, accessible, non judgemental and non-reactive
preparing their clients for all possible outcomes
Conclusion Clinicians and family law practitioners can work together to provide a successful service to parents with mental illness and their children. With the right mind-set and preparation, clinicians and practitioners can work together in the Australian Family Law Courts towards building bridges that traverse the everyday reality of children who have a parent with a mental health problem.
(For information on tips for practitioners and useful helplines see Appendix A)
Tips for Practitioners
Take a calm, informed and observant approach with your clients
Enquire about the emotional well-being of your clients
Enquire about the emotional well-being of the children
Complete short course of Mental Health First Aid
Have advice and support service information ready to make available to your clients
Keep relevant literature or brochures on hand that may assist your clients and their children
Understand any biases or assumptions that you may have about parents who have a mental illness
Understand the constructive role of intervention and medication in the lives of people who have a mental illness
Encourage a relationship between your client and a general practitioner who is an expert in family and child health
Inform yourself about benefits and entitlements towards counselling and treatment through general practitioners and Medicare subsidies
Familiarise yourself with local support agencies, mediators, therapists and services for children
Consider making referrals to appropriate services
Familiarise yourself with the broad diagnoses of mental illness
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 (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
Parentline Queensland and Northern Territory 1300 30 1300 (cost of a local call) 8am to 10pm, 7 days a week
Parentline Victoria 13 22 89 (cost of a local call) Open 8am to midnight 7 days a week
Parent Helpline South Australia 1300 364 100 (cost of a local call) 24 hours a day, seven days a week
Parentline New South Wales 1300 1300 52 (cost of a local call) 24 hours a day, 7 days a week
Parent Help Centre Western Australia (08) 9272 1466 or 1800 654 432 (free for STD callers) 24 hours a day, 7 days a week
Parentline Australian Capital Territory (02) 6287 3833 (cost of a local call) 9am to 9pm, Monday to Friday
Parentine Line Tasmania 1300 808 178 (cost of a local call) 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
COPMI National Initiative http://www.copmi.net.au/
Beyondblue National Health Initiative http://www.beyondblue.org.au/