Current at 16 January 2024

Child abuse reporting requirements

It’s generally accepted that parents are responsible for the care, protection and upbringing of a child. Matters to do with children and the family are usually dealt with under the Family Law Act 1975 (Cth), or alternatively, by the Family Court Act 1997 (WA).

However, if a child has been charged with a criminal offence, is suffering from abuse, or is in need of care, the states and territories have the authority to act in respect to the maltreatment of a child.

Therefore, the questions that need to be asked are:

• What are the general laws relating to the reporting of child abuse?
• Are reporting requirements voluntary or mandatory?

There are a number of elements related to reporting of child abuse which this piece will broadly cover.

Voluntary reporting

The ACT, New South Wales, Queensland, Tasmania, and Victoria provide for voluntary reporting to an authoritative body if a child is being maltreated or requires care. The provisions differ slightly between the jurisdictions. For instance in New South Wales, s 24 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) provides that a person believing on reasonable grounds that a child is at risk of harm, may notify the Director-General of the Department of Community Services. Additionally, some jurisdictions provides that any person acting honestly and without recklessness in their reporting, will not be been deemed to have breached their professional ethics and is protected from civil liability, such as s 874 of the Children and Young People Act 2008 (ACT).

Although there are no specific provisions in South Australia and Western Australia for voluntary reporting, both jurisdictions still provide for those who have acted in good faith when reporting maltreatment of a child to the relevant authority, and will generally be protected from civil or criminal liability.

Mandatory reporting

Although the majority of jurisdictions provide for mandatory reporting of maltreatment of a child, all States and Territories in Australia makes it an offence for certain professionals who fail to report suspected child abuse to the relevant authority. Similar to a number of the legislative instruments related to voluntary reporting, professionals that are legally compelled to report child abuse will generally be protected from civil or criminal liability and will not be seen to have breached professional confidentiality if they have acted in good faith.

The Family Law Act 1975 (Cth) (the Act) has made notification to a prescribed child welfare authority mandatory for certain professionals if they have reasonable grounds for suspecting that a child has been abused, or is at risk of abuse as outlined in s 67ZA(2) of the Act. Professionals who may be mandatorily compelled to report child abuse are generally in occupations that deliver health care, welfare, education, children’s services, residential services, or law enforcement, wholly or partly to children. Additionally, any person who holds a management position in organisations that are directly responsible for the provision of the aforementioned services wholly or partly to children are also required to mandatorily report child abuse (per s 27 Children and Young Persons (Care and Protection) Act 1998 (NSW)).

Professionals required to report instances of child abuse

The class of persons required to mandatorily report child abuse if in the course of performing their duties or functions, has reasonable grounds for suspecting that a child has been abused, or is at risk of being abused are the following classes of professionals:

• Registrars or a Deputy Registrar of a Registry of the Family Court of Australia;
• Registrars or a Deputy Registrar of the Family Court of Western Australia;
• Registrars of the Federal Circuit Court of Australia;
• family consultants;
• family counsellors;
• family dispute resolution practitioners;
• arbitrators;
• lawyers independently representing a child’s interests.

Beyond federal legislation, the States and Territories also requires teachers, doctors, other medical and mental health care professionals, and community service employees to report child abuse if there are reasonable grounds for concern, irrespective of any confidentiality obligations.

“Interested person” and mandatory reporting obligations

In addition to certain persons, an “interested person” in proceedings is also compelled to report occurrences of child abuse. An “interested person” is anyone who is a party to the proceedings, and who is independent of the child’s lawyer.

When looking at the reporting requirements in relation to an “interested person”, the provisions set out two options. Section 67Z of the Act requires an “interested person” who has made an allegation about actual or a risk of abuse to file a “Notice of Child Abuse, Family Violence, or Risk of Family Violence (Form 4)” to the court.

Alternatively, if child abuse occurs, or would occur due to exposure to family violence, an “interested person” is required to file a Form 4, which would then be served on the alleged perpetrator even if the person was not a party in the case. The Form 4 must also be served to the independent child’s lawyer.

What should be included in a Form 4 application

An “interested person” who intends to file a “Notice of Child Abuse, Family Violence, or Risk of Family Violence (Form 4)” should include evidence detailing the alleged actions per Family Law Rule 2.04D.

The form should detail the alleged abuse, whether any attempts at dispute resolution were undertaken, any advice received on community “services and options” if they were available to the victim, and if there are any risks in a delay of application.

Under certain circumstances besides a Form 4, an “Application in a Case” application may be required for interim protection orders. 

How are abused children cared for?

All States and Territories allow either the police or an authorised officer to enter any premises and remove a child from immediate danger, and to provide for their protection and welfare. If the child requires hospital care or immediate treatment, legislation provides that a child can be detained for a specific period of time before an application for an order for the provision of further care is required.

Depending on the situation, a child may also be removed against the will of a parent and be made a ward of the court.

We’re Here to Help

Family law matters can be difficult and complex. If you require any assistance with a family law dispute, always contact a legal practitioner who will be able to help.

O’Sullivan Davies has practitioners experienced both in conducting matters where there has been child abuse, family violence, or the risk of child abuse or family violence. More information about our services can be found at our About Us page here.

Disclaimer

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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