When dealing with parenting disputes, Courts are often required to make decisions that involve a party’s mental health and its impact on their parenting capacity. However, care must be taken in the way these mental health treatment orders are framed. The Court has made it clear that such orders must meet specific legal standards to be enforceable and within judicial power.
This article outlines key considerations when drafting mental health-related treatment orders in parenting matters.
- Orders Must Be Connected to Parenting Arrangements
Mental health treatment orders cannot exist as a standalone order. Rather, they must be “tethered” to a parenting order. That means any order requiring a parent to engage in therapy must be directly linked to the parenting arrangements. For example, as part of a condition for progressing time with a child.
- No Delegation of Judicial Power to Third Parties
The Court cannot delegate its decision-making power to third parties, such as psychologists or counsellors. While expert input would be considered by the Court, the final decision must rest with the Court, not the therapist.
The Court must retain control over whether and when orders change based on evidence, not third-party opinion.
- Orders Must Be Prescriptive, Not Aspirational
Courts require that orders be specific, evidence-based, and enforceable. Orders cannot be based on aspirational improvements in a party’s behaviour or mental health.
Orders must be clear, based on current assessments and facts, and capable of being implemented without ambiguity.
In conclusion, mental health considerations are often highly relevant in parenting proceedings, but the Court’s power to make treatment-related orders is not unlimited. Practitioners must ensure that such orders:
- Are clearly connected to parenting arrangements;
- Do not delegate judicial power to third parties; and
- Are framed in specific and enforceable terms, not on speculative future improvements.