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Mother incapacitated - where to from here?

Hi all. I've spoken often of my partner's issus with his ex, who's had ongoing mental health issues (diagnosed bi-polar but has psychotic episodes consistent with schizophrenia). We've been aware of a decline in recent months - the child's been reporting many disturbing, erratic and delusional behaviours. DOCS declined to to act on our reports, despite the child being clearly distressed. The complaints "do not meet the threshhold for action" - harm has to come to the child before they'll step in. So we've been powerless to help her.

We recieved news the mother has checked into a psychiatric ward. The consent orders state the child is to spend 7 nights each fortnight with the father (although mother is named residential parent), and PR has not been specified, so the presumption obviously applies. My partner will obviously have full time care whilst the mother is in hospital. This is the fourth hospitalisation since he's known her - more often than not she is functional, but even then she is often very controlling and adversarial, and continually attempting to cause conflict through the child. Mother has made 4 false claims over the years ranging from  violence to sexual abuse - 2 withdrawn at last minute, 1 struck out, 1 dismissed - creating unnecessary conflict and indicating continuing paranoia even when medicated. Also removed child from perfectly good school (where my kids whom she loves, also go) and enrolled her at another without consulting father. It was all done behind his back so he had no input and couldn't do anything. In a previous instance of mental breakdown, my partner was advised it was useless to seek full time care based on her health, as she was considered "treatable", and the child would always be handed back over once she was complying with her medical regime. And so far, this has happened 3 times, although he never contested it because of that advice.

This time is a little different. For one, the child is now at an age where she understands the difference bewteen normal and abnormal behaviour (9 years old), and her mother's behaviour over the past 3-4 months has been upsetting, stressful and frightening to her. She's been drawn into paranoid delusions about people watching her through the windows, etc. She's been pressured heavily to lie to the school counsellor about her father, and when she hasn't complied, the mother has punished her harshly by taking all toys, books, movies, TV, treats, computer time and even outings away, one by one, then filling all her play time with chores. She has been treated with contempt, yelled at, blamed for all her mum's perceived problems, and most recently, the mother grabbed her hand and squeezed it tightly and painfully forcing her to paint the walls. The child is at the point where she completely resents her mother and wants to stay with Dad. It's gotten so bad that her response to being informed that mum would likely be in hospital 4-6 weeks, was to smile and say "FINALLY!!", and then run off to her step sisters shouting that this was the best day ever.

We're not sure where to go from here or what sort of orders to seek, but basically, my partner feels that the mother's up and down mental health makes him better equipped to make decisions in the best interest of the child, and I agree. So sole parental responsibility would be a start. But ultimately, once the mother is functioning and can demonstrate proper treatment of her daughter, he is happy to facilitate an ongoing relationship. What he would like is the safety net of being able to stop the mother's visits if she shows signs of mental decline or if the child reports mistreatment - because clearly, DOCS is no help with that unless the child has come to physical harm.

So my questions are:
1. Is he likely to get SPR based on the situation?
2. Is he likely to get a greater percentage of care - ie, rather than 50/50, offer the mother EOW and half school holidays provided she is functional?
3. Is there any reasonable proposal that would leave him in a position to make the ultimate decision on whether or not the child is to visit the mother, in the event her mental health becomes unstable?
4. Are the wishes of the child (aged 9) likely to be considered under the circumstances?


Any input or relevant case law would be appreciated. Thanks! :)
I am sorry to see your daughter going through this. I don't know a lot about family law as I'm new to it, but surely a family report will sway towards the favor of the childs wishes.

All the best.
Hi rabbit,

I suppose you need to assess if the child has fear for her personal safety because whether or not there is physical violence this is one thing that  the court will look at when making a decision,(there are of course many more factors!) I would think you would have definite grounds to book your child in to see a child psychologist, even without permission from the other party, if you dont the court will probably wonder why you didn't if you were so worried about her emotional state and you felt she was being effected to her detriment with all the issues with her mother. I did this in my case and the Judge seemed impressed.

Also in my case DOCs would not touch it , they said they have so many cases where both parents are unable to protect their children in a case like mine where I would take court action to protect my kids they needed to focus on children who didn't have that. I really don't think that DOCs disinterest in a case makes it not suitable for a court to take action…they did take my concerns seriously and ordered as I wanted.

Also, back to the psychologist… you could later use these records in court instead of it being a "he said, she said " situation, an independent third party would be able to note your childs opinions which indirectly could be used in court.

My childrens psychologist recommended I withhold the children due to what he heard off them directly and when I went for a 'Form 4' through the court it helped me to feel confident I was making the right decision based on a professionals opinion .I suggest you get an opinion based on what a professional thinks the risk is to your child.

As I have posted previously you can get the best psychologists free with a "BOMH" referral from your GP.
Thanks for your kind concern ds80. I think you're right, I'm fairly confident a family report would be helpful. Thanks beautifulDAY. Yeah, a psychologist seems like the obvious thing to do, right..? The reasons why we haven't done this yet are complex. When the mother found out my partner was seeing me, she launched her attack from all angles - trying to prevent her from spending time with me, filing false AVO's against both of us, and bullying the child into lying to police, making out that her dad put a bruise on her. After police ignored her claims, she took the child to a psychologist (who conveniently advertises as an expert witness) and had her repeat the claims, then continued with sessions where the girl claims she was asked about her Dad and I, over and over. It was clear the mother was just looking for ANY ANGLE. Our girl was absolutely distraught, thinking her dad would go to jail and blaming herself. But she felt powerless, as her mum would threaten "don't waste my money", then sit in on the sessions. DOCS were no help as usual, so we sought advice from our lawyer, and he warned we would have to tread carefully, as the courts take a dim view of parents "trotting children around to various professionals". So by virtue of getting in first, she had the upper hand - lies or not!

Anyway, we did book a couple of sessions with a child counsellor, but she was terrified mum would find out, so she wasn't saying much (we were hoping she'd relax with time). After the 3rd session, the mother heard she'd been late to school, demanded the principal explain, and was told "she had an appointment". So she drilled the child until she spilled that she'd told a counsellor her mum was mentally ill. Mother flipped out and called the counsellor's office and went on a rampage, demanding case notes for all appointments and telling them they had no right to see the child without her permission. Of course, this got her nowhere, they disclosed nothing. But the mother proceeded to tell child off, call her a traitor and threaten that if she ever spoke about her again, she would box up all of her toys and belongings and sell them and she'd never see them again. So… in a nutshell, the child was too terrified to speak and didn't want to go anymore. Recently the mother instigated school counselling - we soon discovered, her motive was to have the child repeat these same lies she was going on about a year ago! Luckily, the child says she is telling the truth this time, so this counselling may actually get somewhere. So I guess that could prove useful down the track if we need to subpoena the school counsellor? I will talk to my man about seeking an independant psychologist asap though - thanks for the tip!

So is a form 4 what we would need in order to legally retain the child until the matter is heard? Because obviously, we don't feel it's in her best interest to continue under the current arrangement, we want to try to end this problem here and make a change. I will research this immediately, but any insight you have to offer would be great. What kind of orders did you end up getting beautifulDAY? Only if you're comfortable with disclosing of course.

One more question for everybody, just out of curiosity. I've been looking at a lot of case law, and I see independant children's lawyers mentioned a lot. Under what circumstances does an ICL become involved, and are they requested or simply apointed at a judges discretion?
Rabbit, check out the Family Law Act and scroll down to section 68L - Independent representation of child's interests

http://www.austlii.edu...act/fla1975114/index.html



I also have an article in my family law handbook (2nd edition by Maree Livermore - buy this!) which answers your question thoroughly.

It summarised the circumstances in which appointing an ICL will ordinarily be made. These include where:

There are allegations of child abuse;
the parents are in 'apparently intractable conflct';
the child appears alienated from one or both parents;
there are religious or cultural issues affecting the child;
the sexual preferences of one or both parents, or another person who spends a significant amount of time with the child, are likely to affect the child's welfare;
there are significant medical, psychiatric or psychological issues;
neither parent seems a suitable custodian for the child;
a 'child of mature years is expressing strong views, the giving effect to which would involve changing long-standing custodial arrangement or the complete denial of access to one parent';
a party proposes to take the child to a place in or out of Australia that will greatly restrict of exclude the possibility of access for the other parent;
separation of siblings is proposed;
both parents want the child to live with them, and neither has a lawyer;
the court's 'welfare jurisdiction' in relation to a child's medical treatment is involved, and the child's interests are not adequately represented.
Hi rabbit,

WOW what a mess!!Children with parents who have mental health problems really can suffer, I see it in my kids and so have alot of empathy for you and what you and your partner are going through.

The whole "form 4,notice of child abuse or family violence" has been discussed in these forums previously, I raised questions when I was deciding how and if to stop my children from being exposed to the family violence in the other parents home. So maybe you found these when you did a search?

The actual form on the family court website goes into detail of the various types of abuse covered under the form so have a read. As I posted before I filed on the definition that was changed not too long ago that said witnessing family violence can cause fear for a childs personal safety and thus is now considered by the court as unacceptable, I think the definition of abuse does also include mental abuse. A form 4 is not the only way a case can be heard in your situation and the other forums on this topic did touch on that.

 A form 4 will be heard very quickly , mine was 2 weeks from when I filed, but I am not sure this is the way you should go? If you file a form 4 you with hold the child until the case is heard and a Judge decides if your concerns need investigating and makes orders of what will happen with the child to do with "lives with /spends time with" while everything is sorted ie other hearings, professional assessments etc.

The thing I found is you can read and find cases very similar to your own but each Judge has different ideas, moods, interpretation of the family laws so who knows what will happen when you get to court, it is really hard to say and based on the many complexities of your case I could not even begin to speculate.My time in the family courts only showed me how little I know. I would take solicitor advise with a grain of salt  as you get MANY conflicting opinions among them as well, even on subjects that would seem 'cut and dry'. I have known many people badly advised by solicitors….I suppose because family law is just a 'rough guideline Judges use' the solicitors dont really know what might happen with any certainty as well??

In my case I got SPR but my ex discontinued his case at the form 4 hearing .
Thanks again guys.
ds80 - that explains the whole matter very succinctly! Everything I was wondering about has just been clarified. I definitely want to get my hands on that book, it sounds like a gem.

The form 4 sounds like it might be what I was looking for. As things stand right now, obviously I wouldn't need it just yet. I have taken your advice and booked child psychologist, and going to get a consult with a family lawyer next. While the mother is an involuntarily patient (even though she checked herself in, she is not allowed to check hereself out), she is likely to be in there for a few weeks yet, and we're hoping to have a more solid plan in place by then after getting some more advice and talking to the psychologist. What we are most concerned about is that we don't have a definite time frame for her treatment, and we don't know how long it will take to get the ball rolling on the legal aspect.

We want to retain the child until the matter can be processed by the court. I guess we are mostly concerned that if they start the mother back on her meds  and she puts on a great act of being stable and functioning (which she seems able to do at times) they may allow her to leave earlier. We could decline to return the child to her and just inform her by writing that we are doing so until we get to court, but there would be nothing stopping her from simply walking into the school during school hours and signing the child out. The child doesn't want to go back at this stage, and we certainly don't think it would be in her best interests at this point (we'd be looking at some supervised contact first or at least a gradual reintroduction once she can demonstrate her mental health is under control). So I was just wondering which avenue would be used under these circumstances to get temporary care arrangements formalised until the matter can be assessed and hopefully heard.

From what you've indicated, it sounds like form 4 might be what I was looking for. Anybody feel free to let me know if I'm way off the mark or reading into it wrong! The more info the merrier :P

And I know exactly what you mean about the many different rulings for similar matters. I've read so much relevant case law lately, and there really are a plethora of attitudes and approaches. I'm finding it encouraging though, that there are quite a large percentage of cases where the father gets full or majority care when there are mental health issues with the mother. Also, what you said about solicitors advice is exactly what I've been trying to explain to my partner. He had basically accepted that he'd never be able to change the situation, because his solicitor had given the impression that his order was as good as it gets for a dad, and that treatable mental health issues would never be enough to change that. As I've been trying show him though, it's one thing when the mother is periodically erratic and odd, it's another thing when that combines with using the child as a pawn, attempts at alienation, emotional abuse and continually causing great distress in the process. So yes, I think taking solicitors with a grain of salt is really great advice.
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