Parenting

When a Parent’s Mental Health Determines Parenting Orders

When a Parent’s Mental Health Determines Parenting Orders: Re Andrew Applied

Parenting matters involving traumatic circumstances often require the Court to navigate competing considerations that point in entirely different directions. The case of Arendse & Pilkvist [2025] FedCFamC2F 533 demonstrates how a parent’s mental health, when severely compromised by the child’s contact with the other parent, will outweigh the benefit of a child having a relationship with both parents.

In this case, the Court ultimately ordered that the child spend no time and have no contact with the father for a minimum of 12 months (save for very limited correspondence after the moratorium), despite finding no unacceptable risk of physical or emotional harm arising directly from the father.

The decisive issue was the mother’s severe, trauma-related psychological deterioration and how that deterioration would significantly compromise her ability to parent if time with the father continued.

The Tragic Background

The case unfolded after the child’s brother was tragically killed in a 2022 motor vehicle accident while in the father’s care. The father was driving and later pleaded guilty to related offences. Both he and the child were also injured.

The child had been spending three hours of professionally supervised time with the father on alternate weekends. The mother, however, suffered from PTSD, major depressive disorder and persistent complex grief disorder, which were severely aggravated each time the child spent time with the father.

The Re Andrew Principle: What It Actually Says

The principle from Re Andrew (1996) FLC 92-692 requires the Court to consider:

  1. Whether there is an objective unacceptable risk to the child of physical or emotional harm;
  2. If not, whether the primary carer genuinely believes such a risk exists; and
  3. Whether that genuinely held belief will significantly impair the primary carer’s parenting capacity, such that the child will be harmed indirectly.

The key question is whether the primary caregiver’s parenting will be “discernibly impaired” or “significantly impacted” if the child spends time with the other parent.

This principle looks strictly at the child’s best interests, viewed through the functioning of the primary carer.

How the Court Applied Re Andrew in Arendse & Pilkvist

1. No unacceptable risk from the father

Judge Champion found:

  • The father had accepted responsibility for the accident;
  • He showed remorse, had insight, and his mental health was stable enough to parent;
  • Professional supervisors observed warm, positive interactions between the child and father; and
  • There was no unacceptable risk of physical or emotional harm arising directly from the father.

Ordinarily, this would support at least some ongoing time however the Court undertook further enquiries.

2. The mother held a genuine belief that the child was unsafe

Her belief did not need to be rational or objectively correct, only genuinely held.

The Court found it  was.

The mother’s trauma and grief were profound. The accident shaped every aspect of her response to the father, including her belief that the child would not be safe with him.

This belief was not irrational or manufactured. It was rooted in the death of her child.

3. Her parenting capacity would be significantly impaired if time continued

This was the decisive factor.

Multiple professionals—Dr F (psychiatrist), Mr E (family report writer) and Ms K (psychotherapist)—gave evidence of the mother’s:

  • Severe PTSD;
  • Depression;
  • Persistent complex grief;
  • Nightmares;
  • Suicidal ideation;
  • Emotional collapse before and after contact visits;
  • Inability to sleep without medication;
  • Inability to cook, play or function consistently;
  • Rapid deterioration each time the child spent time with the father.

Both Dr F and Mr E described contact as “triggering” and the impact as “cumulative”.

The mother’s functioning deteriorated to the point where the experts believed:

  • She may become unable to care for the child at all;
  • The child would likely suffer emotional harm because of her deterioration;
  • Supervised time would not reduce or mitigate the risk;
  • Only a moratorium on all time and all contact would allow her mental health to stabilise.

This is precisely the type of scenario Re Andrew is designed for:
where the indirect risk to the child, through the primary carer’s collapse, outweighs the direct benefit of time with the other parent.

The Court’s Balancing Exercise: Competing Values

The Court acknowledged the enormous loss to the child:

  • The child has already lost his brother;
  • These orders mean he will temporarily lose his relationship with his father;
  • He will also be estranged from his new baby brother and the paternal family.

Ordinarily, these factors weigh strongly in favour of preserving time. But best interests are values, not facts.

The Court emphasised that the child’s most immediate and essential need was a psychologically stable primary carer.

Without that, all other benefits including a relationship with the father were placed at risk.

Thus the Court preferred the evidence of Dr F and Mr E (more recent and grounded in formal psychiatric diagnosis) over Ms M’s earlier assessments.

The Outcome

The Court ordered:

  • The mother to have sole parental responsibility.
  • The child to live with the mother.
  • No time with the father.
  • No contact for 12 months.
  • After the moratorium:
    • Father may send cards, photos, letters or gifts up to four times a year;
    • The mother must pass these on.
  • The mother must send the father photos of the child four times per year.
  • The “door of opportunity” remains fractionally open for future reconnection.
  • A future change of circumstances (improved mental health, child’s views, time passing) may allow reconsideration under s 65DAAA.

The Court stressed that the father was not being punished. The decision was made solely to protect the child’s wellbeing by protecting the mother’s mental stability.

Why This Case Matters

Arendse & Pilkvist is a significant illustration of how Re Andrew operates in practice:

  • It shows the Court’s willingness to order no time and no contact, even where the other parent poses no direct risk.
  • It confirms that supervised time is not always an adequate safeguard.
  • It reinforces the importance of expert psychiatric evidence in cases involving trauma.
  • It highlights the Court’s recognition that a parent’s ability to function is a core component of a child’s safety.
  • It reminds practitioners that best interests may require painful trade-offs.

And importantly, it affirms that family law is child-centred, not fairness-centred.

Need Advice About Parenting Matters Involving Trauma, Risk or Complex Mental Health?

These cases are legally and emotionally complex. You don’t have to navigate them alone.

Powell Family Law focus on:

  • High-risk parenting matters.
  • Cases involving trauma, PTSD and domestic violence.
  • Re Andrew arguments and unacceptable risk assessments.
  • Litigation involving supervised time, moratoriums and high-conflict dynamics.
  • Trauma-informed practice for primary carers and domestic violence survivors.

Your child’s safety and your wellbeing deserve experienced support.

Contact Natalie Powell at Powell Family Law today to get clear, compassionate legal advice tailored to your situation.

Natalie Powell