Mental illness stalks Australia's family law system. Not only do people with mental health problems have higher rates of relationship breakdown, the concept of mental illness plays out in gendered decisions around children's matters, where mothers are much more likely than fathers to be labelled mentally ill and lose care of their children.
Australia's family law system currently applies two primary principles to children's matters in family law - children's right to a meaningful relationship with both parents and children's right to safety from exposure to violence or abuse. When mothers leave abusive fathers, the law ordinarily requires the children to spend time with both parents, with the result that many children are exposed to continuing violence and abuse. This is itself a major risk to children's mental health and development.
When mothers raise allegations of child abuse they risk being labelled mentally ill by family law experts and losing care of the children by order of the court. Consequently the majority of mothers whose children tell them they are being abused during contact with their father, and whose allegations are disbelieved by the court, learn to comply with contact arrangements regardless of their children's disclosures, distress and behaviour, to avoid losing care of the children. This has severe adverse consequences for the mental health of mothers as well as the children.
The resulting paradox is that mothers of abused children who attempt to stop the abuse are labelled 'mad' and lose their children, or are driven into mental illness by being unable to protect their children.
Dr Elspeth McInnes, Senior Lecturer, University of SA