Neglect and Parenting Matters

Parental neglect is a persistent failure to meet a child’s fundamental physical and/or psychological needs, which is likely to cause significant harm to the child’s health or hinder their development. In a family court matter, the neglectful behaviour of either parent can be a persuasive factor in the making of parenting orders. This article looks at the definition of neglect and its impact in parenting matters.

Parental neglect

In practice, parental neglect typically presents as a failure to provide adequate care, supervision, food and shelter, or medical treatment. Neglecting any of these issues is likely to cause the child significant physical harm, and/or damage the child’s social, emotional, psychological and/or educational development. It can be more difficult to identify parental neglect in comparison to parental physical abuse. For instance, an underweight child might be the result of a neglectful parent, or the child could be naturally thin, picky about food, or suffering from a temporary or chronic illness. As such, it is often professionals like teachers and doctors with extended observations of a child who first recognise neglect and bring the matter to the attention of the authorities.

Children from all socio-economic backgrounds can experience neglect. There is no one cause of child neglect, though it does often occur when parents are experiencing:

• Drug and alcohol addictions
• Mental illness
• Post traumatic stress syndrome
• Inability to cope
• Anger management issues
• Relationship problems
• Poverty

When a parent is neglectful (whether it is driven by one of these issues or not), this can greatly impact the Court’s judgment when making parenting orders. 

Parenting orders

The Family Law Act 1975 establishes the perimeters for the Court to consider when making parenting orders. The Court’s primary focus when making these decisions is the best interests of the child. However, this can be a difficult judgement to make, and the Court has therefore developed guidelines for determining what is best for a child. For instance, for decades it was assumed that it was in the best interests of a child to have both their parents actively involved in their life. In order to rebut this presumption, the Court required evidence that spending time with one (or both) parents would do harm to the child. So, although the focus of the Court was on the best interests of the child, their own guidelines created a de facto assumption that both parents should be given equal and shared parental responsibility.

Recently the Family Law Act was amended to remove this presumption. Following these changes, the Court will now determine the best interests of the child based on the following factors:

• The views of the child, depending on their level of maturity and understanding (although children can choose not to give their opinion)
• The emotional, psychological, developmental and cultural needs of the child
• The capacity of those with parental responsibility to provide for the child’s emotional, psychological, developmental and cultural needs
• Which arrangement would better assure the child’s safety from abuse, family violence, and neglect
• Who will have care of the child under a parenting order (including anyone who does not have parental responsibility)
• The rights of an Aboriginal and/or Torres Strait Islander child to enjoy their culture and support from their community
• The potential benefit to the child from having a relationship with their parents and other significant figures in their life, and
• Any other relevant circumstances.

In parenting matters, the Court also considers any current or past family violence orders that pertain to the child or member of the child’s family. In addition to considering instances of family violence and abuse of the child and anyone caring for the child, the Court also looks at whether there is a history of neglect.

The Family Law System and the Child Protection System

All jurisdictions in Australia have a child protection department that is tasked with preventing the abuse and neglect of children. Under state and territory legislation, these departments have authority to intervene in situations where it is believed that the child is exposed to serious abuse or neglect. These same laws create mandatory reporting requirements for professionals such as medical practitioners and teachers to notify the local department of any concerns.

By contrast, the family law system’s role is not to investigate, but to resolve disputes brought by family members. However, parties in a family law matter can submit a Notice of Risk form when filing an Application or Response. This form allows the parties to disclose knowledge (or even suspicions) of child abuse or neglect. This disclosure notifies the Court and the other parties of potential neglect or abuse that might occur depending on the Court’s parenting orders.

In some circumstances, both the family law system and the child protection system become involved in a child’s life. For instance, a child at the centre of a parenting matter may also be the subject of a court proceeding or investigation in the child protection system. While the family court system might decide it is in the best interests of the child to live with one parent, the child protection system may have good reason to believe that the parent will be neglectful. In that instance, the Family Law Act provides that the child protection system can intervene to remove the child and place them elsewhere, such as foster care.

Anyone with reasonable grounds to suspect child abuse or neglect should contact the Department for Child Protection or the police in case of emergency. For any advice about parental neglect and its impact on parenting orders, please contact Go To Court Lawyers on 1300 636 846.