Mental Health and Psychological Assessments in Australian Parenting Proceedings

When mental health becomes relevant in a parenting case

The fact that mental health is raised in parenting proceedings does not itself determine the outcome. It surfaces in several ways: one parent alleges that the other’s illness, substance use or personality makes them unsafe or unreliable; a parent discloses their own history in an affidavit to pre-empt the allegation; a child is struggling and the parents disagree about why; a family violence history has left one parent with trauma symptoms the other now characterises as instability; or a report writer or an independent children’s lawyer identifies a concern neither parent has named.

The court’s task is the same in each case. It is not to diagnose, treat or judge a person’s worth as a parent, but to make the parenting orders that are in the child’s best interests on the evidence before it. Mental health is relevant only to the extent it bears on the statutory considerations — most often on safety, on the child’s developmental, psychological and emotional needs, and on each person’s capacity to provide for those needs. A condition that is acknowledged, treated and does not affect day-to-day care may be of little consequence. A condition that is denied, untreated and expressed in behaviour that frightens or neglects a child is another matter, whatever it is called.

Two consequences follow. First, an allegation about mental health is not evidence of it: the court decides on what is proved, not on what is asserted. Second, the person best placed to shape how their own mental health is understood is usually the person who has it. Candour, treatment records and a considered account of how a condition is managed are generally far more persuasive than denial.

The best-interests framework the assessment feeds into

Section 60CA makes the child’s best interests the paramount consideration when the court decides whether to make a particular parenting order. Section 60CC, as substituted with effect from 6 May 2024, sets out how the court determines those interests. The general considerations in section 60CC(2) are:

• what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and of each person who has care of the child;
• any views expressed by the child;
• the developmental, psychological, emotional and cultural needs of the child;
• the capacity of each person who has, or is proposed to have, parental responsibility to provide for those needs;
• the benefit to the child of being able to have a relationship with the child’s parents and other significant people, where it is safe to do so; and
• anything else relevant to the particular circumstances of the child.

In considering safety the court must include any history of family violence, abuse or neglect involving the child or a carer, and any family violence order that applies or has applied (section 60CC(2A)). For an Aboriginal or Torres Strait Islander child the court must also consider the child’s right to enjoy their culture (section 60CC(3)). Our guide to the best-interests test explains each consideration in detail.

Every report discussed in this article exists to inform one or more of those considerations. A Child Impact Report screens for risk and reports the child’s experience; a Family Report analyses the section 60CC matters comprehensively; a psychiatric or psychological assessment answers specific questions about a person’s condition, functioning and prognosis that bear on safety and capacity. None of them decides the case. Under section 60CD the court may inform itself of a child’s views through a section 62G report, through an independent children’s lawyer or by other appropriate means, and nothing in Part VII permits anyone to require a child to express a view (section 60CE).

Diagnosis versus impact on parenting

The most important distinction in this area is between a diagnosis and its impact. The statutory considerations do not mention diagnoses at all. They ask about safety, needs and capacity, and those are questions about behaviour and functioning in the actual context of the child’s life.

That is why the same diagnosis can be almost irrelevant in one case and central in another. A parent with a bipolar disorder who has been stable on treatment for years, has insight into early warning signs, has a treating psychiatrist and a plan for relapse, and has never placed a child at risk, presents very differently from a parent with the same diagnosis who denies it, has stopped treatment, and has recently been unable to care for the child during an episode. A parent whose anxiety is severe enough that they cannot reliably deliver a child to school, and a parent whose anxiety is managed with therapy and has no visible effect on the child, share a word, not a case.

The practical questions the court and its assessors will want answered are therefore:

• Does the condition, at present, affect the person’s ability to keep the child safe and to meet the child’s physical, emotional and developmental needs?
• Has it affected parenting in the past, and if so how, when, and what has changed?
• Does the person have insight — do they recognise the condition and its effects — and are they engaged with treatment?
• What is the prognosis, what are the warning signs of deterioration, and what supports and protective factors exist — treating practitioners, family, a stable routine, a co-parent who can step in?
• What is the child’s own experience of the parent, as distinct from the other parent’s account of it?

Where a diagnosis is genuinely in issue — because it is disputed, because the condition is complex, or because prognosis and risk cannot responsibly be assessed without clinical expertise — the court will generally need evidence from a psychiatrist or psychologist. Where the real question is how a family is functioning and what the child needs, a family assessment may be enough. Understanding which question is being asked is the key to understanding which report is ordered.

Comparison: the reports the court may receive

The table below sets out the main forms of assessment evidence in a parenting case, using the terminology of the Federal Circuit and Family Court of Australia. The first five are prepared by family consultants through the Court Children’s Service (CCS) — most CCS reports are ordered under section 62G — and the remainder are prepared by private practitioners.

A Family Report is a family assessment, not a clinical diagnosis

The Family Report is the best-known assessment in Australian parenting litigation, and it is often misunderstood as a psychological evaluation of the parents. It is not. The Court’s fact sheet on reports prepared by the Court Children’s Service describes the Family Report as a comprehensive report offering a detailed analysis and evaluation of the section 60CC factors, the issues in dispute and the proposals before the Court, involving an assessment of risk factors, family relationships, children’s functioning and wellbeing within the family context, and children’s needs, views and wishes. It then states, in terms, that the Family Report cannot provide a clinical assessment or diagnosis of any mental health or related issues.

That limitation is deliberate. Family consultants are registered psychologists or social workers with at least five years’ experience with children and families; their expertise is in family assessment. Even where the writer is a psychologist, the task under section 62G is a forensic family assessment, not a clinical consultation, and the Australian Standards of Practice for Family Assessments and Reporting (2015) direct that a family assessor should not offer advice or undertake therapeutic interventions with anyone involved. The Standards are professional guidance published in 2015 rather than legislation, and they are not universally binding: they predate the present structure of the Federal Circuit and Family Court of Australia, and the Court notes that the current issue does not reflect recent structural changes. A Family Report will describe what the writer observed, what the parties and children said, and what the writer infers about parenting capacity, risk and the child’s needs. It may note that a parent reports a diagnosis, that treatment is or is not in place, and that behaviour observed in interview is or is not consistent with the concerns raised. It will not, and should not, purport to diagnose.

The Court’s Family Reports fact sheet draws the distinction directly: in some matters the Court requires a specific type of expert to provide assessments, diagnosis and other information that cannot be provided by a family consultant — for example a psychiatrist to provide a psychiatric assessment report. Where mental health is a live and disputed issue, it is common for a Family Report and a single-expert psychiatric or psychological report to be ordered together, with the family consultant sometimes directed to have access to the expert report before finalising their own.

Child Impact Reports

The Child Impact Report is the Court’s preliminary, child-focused assessment. It is prepared by a Court Child Expert — a psychologist or social worker employed by the Court who acts under a statutory appointment as a family consultant — and is ordered early, usually before a first interim hearing or to support dispute resolution. The Court’s guidance describes its focus as obtaining insight about children’s views, needs and experiences, and the screening, identification and preliminary assessment of risk issues.

The process has two parts:

1. Part 1 — adult interview. A separate interview with each party, usually by video and lasting roughly an hour, in which the Court Child Expert asks about the children and any safety or wellbeing concerns. Other adults are generally not interviewed. A support person may attend under the CCS guidelines, but cannot be your lawyer, cannot speak for you and will be noted in the report.
2. Part 2 — child assessment. Conducted in person at the registry and tailored to the child. School-aged children are generally interviewed individually; very young children may be observed with one or both parties. The child is given the opportunity to express views but is not required to. The Court Child Expert will read documents filed by the parties as directed, but will not read subpoenaed documents unless specifically ordered.

A Child Impact Report is not a mental health assessment of either parent. Where a parent’s mental health is raised, the report may record the concern, describe how each parent presents and what the children say, and identify whether the issue warrants further assessment. The Court’s guidance is explicit that, due to its limited nature, the Child Impact Report does not provide an assessment suitable for final hearing or cross-examination. Its value is in shaping interim arrangements and case management — including whether a Family Report, a single expert, or an independent children’s lawyer is needed. Where a matter proceeds to trial, the same Court Child Expert may be asked to prepare a Child Impact Addendum Report within six months, or the court may order a full Family Report.

Section 62G Family Reports: the statutory basis

Section 62G(2) empowers the court, in proceedings under Part VII, to direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable. Most CCS reports, including Child Impact Reports, are now ordered under this section, and a section 62G report can be prepared only by a practitioner acting under their statutory appointment as a family consultant. The section’s other provisions shape how the process works:

• If the report relates to a child, the family consultant must ascertain the child’s views and include them in the report, unless that would be inappropriate because of the child’s age or maturity or some other special circumstance (section 62G(3A)); the consultant may include any other matter relating to the child’s care, welfare or development they think relevant (section 62G(4)).
• The court may make orders or give directions it considers appropriate, including that a party or the child attend an appointment with the family consultant (section 62G(5)).
• If a person fails to comply, the family consultant must report the failure to the court (section 62G(6)), and the court may then make such further orders as it considers appropriate (section 62G(7)).
• The report may be received in evidence in any proceedings under the Act (section 62G(8)).

Family consultants are defined in section 11B: they are persons appointed under the Federal Court of Australia Act 1976 (Cth) (the Court’s own Court Child Experts), under the regulations (Panel Family Consultants appointed by the Chief Executive Officer under regulation 40 of the Family Law Regulations 2024), or under a State Family Court law. Their functions under section 11A include assessing and reporting to the court in proceedings, and section 11D gives a family consultant performing those functions the same protection and immunity as a judge. The court must consider seeking a family consultant’s advice before ordering a person to attend counselling, a program or appointments (section 11E), and it may order parties, or a child, to attend appointments with a family consultant (section 11F).

The Family Report process generally includes individual interviews with each party and, where relevant, other significant adults such as new partners, adult siblings or grandparents; interviews with the children, seen separately from adults except in special circumstances; parent–child observation sessions where appropriate; and a review of the court file and any subpoenaed material the court has directed the consultant to access. The consultant may ask a party’s permission to contact teachers, doctors or other professionals. Once the report is complete it goes to the ordering judge or registrar, who formally releases it to the parties’ lawyers (or to a self-represented party) and to any independent children’s lawyer. Parties may not contact the consultant after their interview, and after release the consultant cannot discuss the report or receive further information.

The Family Report is one source of evidence among several. The Court’s own guidance states that it is not bound by any recommendation in the report, and the writer can be cross-examined by each party and the independent children’s lawyer at trial. It is nonetheless influential, and the Court notes that it is not uncommon for matters to settle on its release.

Private family reports and single-expert assessments (Part 7.1)

Where the court needs evidence a family consultant cannot give — most obviously a diagnosis, a prognosis, an opinion on the effect of a condition on parenting capacity or risk, or a view on treatment — it turns to private experts under Part 7.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The same Part governs private family reports commissioned by the parties where the Court Children’s Service is not preparing a report.

Part 7.1 is built around the single expert witness. Its stated purposes (rule 7.02) are to confine expert evidence to significant issues genuinely in dispute, to have that evidence given by a single expert where practicable, and to avoid the cost of duelling experts. The parties may agree to jointly appoint a single expert (rule 7.03), or the court may order that expert evidence on an issue be given by a single expert, on application or on its own initiative (rule 7.04); a person may be appointed only with their consent (rule 7.04(3)). In child-related proceedings the court also has broad power under section 102NN of the Act to direct the matters on which an expert is to give evidence, the number of experts and how their evidence is to be given.

The mechanics matter, because they determine what the report can address:

• Choosing the expert. The court may order the parties to confer and, failing agreement, to provide a list of consenting experts and their fees, from which it appoints (rule 7.05). An independent children’s lawyer, where appointed, is typically closely involved and may communicate with the single expert (rule 7.01(2)).
• The letter of instruction. The expert answers the questions put to them. A well-drafted letter identifies the precise issues — for example whether a party has a diagnosable condition; its severity, course and prognosis; whether and how it affects the party’s capacity to meet the children’s needs and to keep them safe; what treatment is in place or indicated; and what, if any, protective conditions would assist. The expert’s report must attach a summary of the instructions and a list of the documents relied on (rule 7.21), and must state the reasons for its conclusions, the methodology used and the expert’s qualifications (rule 7.22).
• Fees. Unless the parties agree or the court orders otherwise, the parties are equally liable for the single expert’s fees and expenses (rule 7.06).
• Release. Under rule 7.07, if the single expert was appointed by the parties, the expert gives each party a copy of the report at the same time; if the expert was appointed by the court, the expert ordinarily gives the report to the Registry Manager unless the court orders otherwise. The report becomes the expert’s evidence in chief, together with any notice of changes and any answers to written questions (rule 7.20).
• Other experts. Once a single expert has been appointed on an issue, no party may tender another expert’s report or adduce their evidence on the same issue without permission (rule 7.08). Permission requires a substantial body of contrary opinion that is or may be necessary to determine the issue, another expert’s knowledge of matters the single expert did not know, or another special reason. A party’s own expert may still be used, with permission, to help the party formulate questions or cross-examination.

Where a party has been assessed by a private practitioner for a purpose other than the litigation — a treating clinician, or an expert retained for a different matter — that evidence is largely outside Part 7.1 by reason of rule 7.01 and is dealt with below.

Psychologist or psychiatrist?

Parties and lawyers often ask which discipline the single expert should come from. There is no rule; the answer depends on the question. Both psychiatrists and psychologists are regulated health practitioners under the national registration scheme administered through the Australian Health Practitioner Regulation Agency, but their training and tools differ.

In practice the parties’ lawyers and any independent children’s lawyer confer about discipline, availability, cost and, where relevant, whether the expert has experience with the particular condition or with children of the relevant age. A psychiatrist may be preferred where the central question is a disputed diagnosis or the management of a major illness; a psychologist where the question is about personality, trauma or parenting capacity and psychometric testing would assist. Some matters call for both. Whoever is appointed, the Standards of Practice require that psychometric instruments be used only for the purposes and populations for which they have published validity and reliability, and only alongside interviews and other information — a test score is never a finding on its own.

Treating practitioner versus forensic assessor

A separate and frequently confused distinction is between the clinician who treats a person and the expert who assesses them for the court. Both may be psychiatrists or psychologists; their roles are different, and the court treats their evidence differently.

Treating evidence is far from worthless. A concise letter from a treating psychiatrist or psychologist confirming diagnosis, the duration and nature of treatment, compliance, current functioning and prognosis is often among the most useful documents a parent with a mental health history can put before the court, and its limited scope under rule 7.01 is a strength rather than a weakness: it is what the clinician actually knows. Where a treating clinician is pressed to go further — to express opinions on the other parent, on the children’s best interests or on parenting arrangements — the evidence moves into territory the clinician is poorly placed to address, and its weight falls accordingly. The Standards of Practice also warn family assessors against multiple or conflicting relationships, which is why a person’s own therapist should not be appointed as the forensic assessor.

What the assessment process involves

The detail varies with the type of report and the expert, but a forensic psychiatric or psychological assessment of a parent in a parenting case commonly involves:

1. Instructions and documents. The expert receives a letter of instruction, the relevant affidavits and court documents, and any subpoenaed records the parties have agreed or the court has directed be provided.
2. Clinical interview. One or more interviews with the party, typically covering personal, family, relationship, medical and psychiatric history; substance use; the history of the separation and the litigation; the party’s account of the allegations; current symptoms and treatment; and a mental state examination. Interviews commonly run for two to three hours and may be split across sessions. The Australian Standards of Practice for Family Assessments and Reporting state that a full family assessment by a family assessor should include at least one in-person interview with each parent; that is guidance about a full family assessment, not a compulsory method for every focused psychiatric or psychological assessment of a single parent.
3. Psychometric testing, where the expert considers it appropriate — standardised questionnaires assessing personality, mood, trauma symptoms or parenting attitudes, interpreted against published norms and, properly, only alongside the interview and records.
4. Collateral information. With the party’s permission, or under court order, contact with treating practitioners, and review of medical, hospital, police, child protection or school records. All collateral sources must be disclosed in the report.
5. Interviews with the other party and the children, and parent–child observations, where the instructions call for a family assessment rather than an assessment of one adult. Children are told at the outset that what they say is not confidential.
6. Report. A written report in the form required by rules 7.21 and 7.22, verified by affidavit, setting out the instructions, the documents relied on, the methodology, the findings, the reasoning and the opinions expressed.

A forensic assessment is not therapy. The assessor will not offer advice or treatment, will not keep confidences and will not take sides. Interviews, observations and calls must not be recorded without the assessor’s and the party’s agreement, and where the assessment is court-ordered the Court’s rules on recording apply. Assessors keep contemporaneous notes, which are retained securely and, where the report was ordered by a court, released only by court order.

Preparing for an assessment

Preparation is about being organised and honest, not about performing. A rehearsed or defensive presentation may be noted and weighed by the assessor, and it is not a reliable substitute for a straightforward account. Practical steps that help:

• Know your own history. Be able to give a clear, chronological account of any diagnosis, treatment, medication, hospital admissions and periods of difficulty, with approximate dates and the names of treating practitioners. If you are unsure, ask your GP for a health summary beforehand.
• Gather the documents. Treating-practitioner letters, mental health treatment plans, discharge summaries, certificates for programs completed, and evidence of ongoing engagement. Provide them to your lawyer; the expert receives documents through the agreed process rather than at the door, and a Court Child Expert will read only what the Court directs.
• Think about the child, not the case. Be ready to describe each child’s routine, personality, school, friendships, health and needs, and how you meet them. Assessors notice the difference between a parent who talks about the child and a parent who talks about the other parent.
• Prepare to discuss the allegations calmly. You will be asked about the other party’s concerns. Answer factually, acknowledge what is true, explain context without excuses, and describe what has changed. A blanket denial, or a refusal to concede anything, may be given little weight.
• Attend to logistics. Confirm the date, time, location or video link, expected duration and whether the children are to attend and who is to bring them. Arrange leave, travel and, for a Child Impact Report, a private space with no one else present. Raise safety concerns with the Court Children’s Service or the expert in advance.
• Do not coach the children. Tell them, in age-appropriate terms, that they will meet someone who wants to hear about their experiences and views, that they will not be made to talk about anything they do not wish to, and that there are no right answers. Do not tell them what to say, rehearse them or debrief them afterwards. Coaching is usually detected and reflects poorly on the parent.
• Look after yourself. Attend well rested and, if you take medication, as prescribed. If you are in treatment, tell your treating practitioner the assessment is coming; an appointment shortly before or after can help.

Participating in the assessment

On the day, a few principles carry most of the weight.

• Be honest, including about the difficult parts. Assessors will have read the court file and may have records. A parent who volunteers a past admission, a relapse or a poor decision, and explains what was learned from it, demonstrates exactly the insight the court is looking for. A parent caught out in an omission loses credibility on everything else.
• Answer the question asked. Long narratives about the other parent’s faults are seldom useful. If the assessor wants your view of the other parent, they will ask.
• Distinguish what you know from what you believe. If you are reporting something a child told you, say so. If you are speculating about the other parent’s diagnosis, say that too — or better, do not offer a diagnosis you are not qualified to make.
• Support persons. For CCS adult interviews you may bring a support person, who must be an adult, cannot be your lawyer or hold any other role in the case, must be identified to the report writer in advance, and may offer emotional support only — not speak for you, answer questions or supply information. Their presence will be recorded in the report. A proposed support person whom the assessor may need to interview separately, such as a new partner, is unlikely to be suitable.
• Interpreters and accessibility. If you need an interpreter, or adjustments for a disability, tell the Court Children’s Service or the expert beforehand so they can be arranged.
• Take a break if you need one. Ask. Assessors expect that discussing separation, illness and allegations is distressing, and a request for a short break is not held against you.
• After the interview. You may not contact the family consultant afterwards, and once a report is released the writer cannot discuss it with you or accept further information. Anything you want to add goes through your lawyer and, if appropriate, through the court.

Confidentiality and admissibility: what happens to what you say

The single most important thing to understand before any assessment is that it is not confidential. The Court’s guidance puts it plainly: any information you provide to the family consultant is not confidential, all information gathered is admissible and can become evidence, and the consultant is required to include relevant information in the report. The Standards of Practice require assessors to make this clear to adults at the outset, and to begin interviews with children by telling them that what they say is not confidential.

The statutory basis is section 11C of the Act:

• Evidence of anything said, or any admission made, by or in the company of a family consultant performing their functions, or a person to whom the consultant referred the person for medical or other professional consultation, is admissible in proceedings under the Act (section 11C(1)).
• That does not apply if the person was not informed of the effect of section 11C(1) before the communication was made (section 11C(2)), which is why assessors give the warning at the start.
• Section 11C(3) preserves admissibility of an admission of abuse, or disclosure of a risk of abuse, of a child by a person under 18, even where the warning was not given.

Family consultants are also subject to mandatory reporting. Under section 67ZA, a family consultant, family counsellor, family dispute resolution practitioner, independent children’s lawyer and certain court officers who have reasonable grounds to suspect that a child has been abused, or is at risk of being abused, must notify a prescribed child welfare authority as soon as practicable; they may also notify where they suspect ill-treatment or exposure to behaviour that psychologically harms the child. “Abuse” is defined in section 4(1) to include causing a child to suffer serious psychological harm, including through being subjected or exposed to family violence, and serious neglect. The Court’s guidance adds that a consultant may need to contact police if they believe a person is at imminent risk of harm.

This is the opposite of the position in family counselling and family dispute resolution, where communications are generally confidential and inadmissible under sections 10D, 10E, 10H and 10J, subject to exceptions including child abuse. A Court Child Expert may act as a family counsellor or as a family consultant in a given matter, but not both, precisely because the two roles carry opposite confidentiality rules. If you are unsure which role a professional is performing, ask before you speak.

A related caution concerns publication. Section 114Q of the Act makes it an indictable offence, punishable by up to one year’s imprisonment, to communicate to the public an account of proceedings that identifies a party, a witness or a person associated with a party. Family Reports and expert reports are released for the purposes of the proceedings; the Court’s guidance warns against showing them to others without permission, and posting extracts online can be a criminal offence as well as a contempt.

Clinical records, subpoenas and protected confidences

A parent’s treatment history is often documented in GP files, psychologist and psychiatrist notes, hospital records and, where relevant, records held by police, child protection agencies or alcohol and drug services. The other party, or an independent children’s lawyer, may seek those records by subpoena. The procedure in Part 6.5 of the Rules and the protected-confidence provisions in Part XI Division 1B of the Act together determine what the court will see.

Getting a subpoena issued. A self-represented party needs the court’s permission for any subpoena, and every party needs permission for a subpoena for production for a final hearing, a subpoena to give evidence, or a subpoena directed to another party (rule 6.27). A party may, without permission, request up to five subpoenas for production for an interlocutory hearing (rule 6.27(3)). A subpoena must not be requested for a document the court has already ordered would disclose a protected confidence (rule 6.27(2A)).

Objecting. Any person may object to producing, inspecting or copying a subpoenaed document by giving written notice of the objection and its grounds before the return date (rule 6.38(1)). Where the subpoena seeks a person’s medical records or a document recording a protected confidence, that person may notify the Registry Manager that they wish to inspect the records first; they may then inspect and lodge an objection within seven days, and unless otherwise ordered no other person may inspect the records until that period expires or the objection is determined (rule 6.38(2)–(3)). Objections are referred to the court for determination (rule 6.38(4)). Documents produced under a subpoena may be used only for the proceedings and must not be disclosed to anyone else (rule 6.36).

Protected confidences. Part XI Division 1B, sections 102BA to 102BF, gives the court a specific power to protect therapeutic communications. A protected confidence is a communication made in the course of, or in connection with, a relationship in which a person (the confidant) is acting in a professional capacity to provide a health service or a specialist sexual assault or family violence service to another person (the protected confider), and the confidant is under an obligation not to disclose it (sections 102BA and 102BB). The court may direct that evidence not be adduced if it would disclose a protected confidence (section 102BC), and may direct that a document not be produced, inspected or copied despite a subpoena or other disclosure requirement (section 102BD). It may act on its own initiative or on application by the confidant, a person with control of the document, an adult protected confider, or — where the confider is a child — a person with parental responsibility, an independent children’s lawyer or a person with care of the child.

The test under section 102BE is whether it is likely that harm would be caused to the protected confider or to a child if the evidence were adduced or the document produced, and whether the nature and extent of that harm outweighs the desirability of the evidence or document being available. Harm includes physical or psychological harm, oppression, mental distress, a detrimental effect on a party’s capacity to care for a child, and financial harm. In Part VII proceedings the best interests of the child are the paramount consideration in making that decision. A direction cannot be given where an adult protected confider consents in writing, witnessed by an independent adult, to the evidence being adduced or the document produced (section 102BF).

Three practical points follow. First, therapy notes are not automatically protected: a party seeking protection must make the objection or application, and the court balances harm against the value of the evidence. Second, the more central a party’s mental health is to the issues, the greater the desirability of the evidence and the harder protection is to obtain; the provision is most likely to assist where records concern matters peripheral to the child’s welfare, or where production would cause serious harm to a victim of violence for limited forensic gain. Third, records frequently help the party they concern. A file showing consistent attendance, adherence to treatment and improvement is protective evidence, and a decision to resist production should be made on advice, not on instinct. Family consultants may be directed by the court to have access to subpoenaed material; a Court Child Expert preparing a Child Impact Report will not read it unless specifically ordered.

Family violence and safety in assessments

Family violence and mental health are entangled in many parenting cases. Violence causes trauma, anxiety and depression in those subjected to it; a parent who has used violence may minimise it or attribute the other parent’s symptoms to inherent instability; and a child exposed to violence may present with difficulties that each parent attributes to the other. The court must consider the history of family violence, abuse or neglect and any family violence order when assessing safety (section 60CC(2)(a) and (2A)), and “family violence” is broadly defined in section 4AB to include coercive and controlling behaviour, not only physical harm. Our guides on family violence and parenting orders and intervention orders in Victoria deal with the substantive law.

For the assessment itself:

• Tell the Court Children’s Service or the expert before the appointment if you have any safety concern. The Court’s guidance is that options will be discussed and a safety plan put in place when the Court is aware of concerns; parties are interviewed separately and arrangements can be made for separate arrival and waiting areas, or remote attendance. By law, parties must inform the court of any existing or pending family violence order (section 60CF).
• Safety arrangements do not prejudge the allegation. The Standards of Practice state that making arrangements based on a party’s expressed concerns is not itself a presumption about the validity of those concerns. A parent accused of violence is not disadvantaged by the other parent being interviewed in a separate room.
• Trauma is not incapacity. A competent assessor distinguishes symptoms that are a response to violence from a condition that impairs parenting, and recognises that a parent who is hypervigilant, tearful or disorganised in interview may be reacting to the presence of the person who harmed them. Where a party has a documented trauma history it is legitimate to ask that the expert appointed have experience with family violence.
• Do not accept a “mutual conflict” framing uncritically if the history is one of coercive control. Raise it through your lawyer in the letter of instruction and, if necessary, in cross-examination.
• Records. Counselling and specialist family violence service records are protected confidences under section 102BB; the harm-balancing exercise in section 102BE expressly contemplates harm to a victim and the effect on a party’s capacity to care for a child.

Testing a report you disagree with

A report is evidence, not a verdict. Reports can rest on incomplete information, on an uncritical acceptance of one party’s account, on collateral sources that were never tested, on psychometric instruments used outside their validated purpose, or on reasoning that does not follow from the findings. The Standards of Practice themselves acknowledge the right of parties to challenge the validity of collateral information and caution that the views of other professionals should not be treated as true or valid unless determined by a court. The Rules provide a staged process for testing a single expert’s report:

1. Clarification conference. Within 21 days after receiving the report, the parties may agree in writing to confer with the single expert to clarify it; the arrangements may include the attendance of another expert or a supplementary report (rule 7.25). Conference costs are borne by the attending party or parties (rule 7.28).
2. Written questions. A party may put written questions to the single expert, once only and solely to clarify the report, within seven days after a conference or, if none, within 21 days of receiving the report (rule 7.26). The expert must answer in writing within 21 days of receiving the questions or of the fees being paid or secured (rule 7.27), and the questioning party pays.
3. Cross-examination. A party who wants to cross-examine a single expert at trial must notify the expert in writing at least 14 days beforehand; the court may limit the nature and length of cross-examination, and the requiring party generally pays the expert’s reasonable attendance fees (rule 7.09). Family consultants who prepared a Family Report may likewise be required for cross-examination by the parties and the independent children’s lawyer.
4. Another expert. Evidence from a further expert on the same issue requires the court’s permission under rule 7.08, on the grounds described earlier. A party may, with permission, obtain their own expert’s advice to inform questions and cross-examination even where that expert will not give evidence.

The most effective challenges are specific. They identify a factual premise the expert accepted that is contradicted by documents; a relevant record the expert did not have; a test administered outside its validated population; a conclusion expressed with more confidence than the method permits; or an opinion on a matter outside the expert’s discipline. Generalised complaints that the expert “believed the other side” achieve little. It also helps to remember that in child-related proceedings the rules of evidence concerning opinion and hearsay generally do not apply unless the court decides otherwise (section 102NL), and the court gives such weight to the evidence as it thinks fit. Weight, not admissibility, is usually the battleground.

Refusal and non-attendance

Parents sometimes ask whether they can simply decline to be assessed. The legal position has two limbs.

What the court cannot do. The court cannot physically compel an adult to submit to a psychiatric or psychological examination, and it has no power to order a person to accept treatment, take medication or attend therapy. Orders about assessment are orders to attend and participate, not orders authorising an examination against a person’s will.

What the court can do. It can order a party to attend appointments with a family consultant (section 11F) and can make orders about attendance for a section 62G report (section 62G(5)). It can order that expert evidence be given by a single expert (rule 7.04) and give directions about expert evidence (section 102NN). A family consultant must report a failure to attend (sections 11G and 62G(6)), and the court may then make such further orders as it considers appropriate (sections 11G(2) and 62G(7)). In the meantime the case does not stop. The court may:

• proceed to decide interim or final arrangements on the evidence it has, which will include the other party’s account and whatever the report writer was able to prepare without your participation;
• draw inferences from an unexplained refusal, particularly where the refusal leaves a specific and serious concern unanswered;
• adjourn or restructure the case, with the delay and cost that involves; and
• take the conduct into account on costs.

The practical reality is that refusing to engage rarely protects the person who refuses. A concern about a parent’s mental health that is met with an independent assessment can be answered; the same concern met with a refusal is left hanging, and the court is entitled to be cautious. There are legitimate reasons to raise objections — a proposed expert with a conflict of interest, a letter of instruction that assumes contested facts, an assessment that would require contact with a person who has used violence — but they are addressed by objection and application before the appointment, through your lawyer, not by non-attendance. If a genuine obstacle arises on the day, tell the Court Children’s Service or the expert immediately; appointments are changed only in exceptional circumstances, but the reason is recorded.

How assessments shape outcomes

Assessments influence outcomes at every stage. On an interim basis a Child Impact Report can bear directly on whether time is supervised, how quickly it expands and whether further assessment is ordered. At trial, a Family Report and any expert report are central to the court’s findings on safety and capacity. The court is not bound by any recommendation. If the court departs from a material recommendation, its reasons should address the evidence and explain the outcome.

Where a parent’s mental health is found to bear on the child’s safety or needs, the court’s response is proportionate to the risk identified and calibrated to what can be done about it. The range of outcomes includes:

• Orders unaffected by the condition, where the evidence shows it is managed and has no material effect on parenting — a common outcome where a diagnosis has been raised without evidence of impact.
• Protective conditions — for example requirements about medication or treatment engagement supported by periodic letters from a treating practitioner, restrictions on alcohol or drugs, or injunctions — where a condition is managed but there is a realistic risk of relapse. Orders of this kind restrain conduct and set the terms on which time occurs; they do not compel medical treatment, but non-compliance may trigger a change in arrangements.
• Graduated or staged time, increasing as engagement with treatment is demonstrated and stability is established.
• Supervised time, by a professional service or an agreed family member, where unsupervised time presents an unacceptable risk that supervision can manage. Supervised time of that kind is ordered as a parenting arrangement. Separately, and for a different purpose, section 65L permits the court to require a family consultant to supervise or assist compliance with a parenting order where that is in the child’s best interests.
• Attendance at a post-separation parenting program (section 65LA) or appointments with a family consultant (section 11F).
• No time, or communication only, in the comparatively rare cases where the evidence establishes a risk to the child that cannot be managed by conditions or supervision.

Where the court is asked to find that a parent presents a risk of harm, it applies the “unacceptable risk” approach, asking whether the evidence establishes a risk of harm that is unacceptable in the child’s circumstances, rather than requiring proof that harm has occurred or will occur. A mental health assessment is often the principal evidence on that question. For the full range of parenting orders and how they are framed, see our complete guide to parenting orders; where orders are later breached, our guide to contravention applications explains the consequences.

Recovery, treatment and disability are not bars to parenting

The law does not require parents to be well. It requires the arrangements for a child to be safe and to meet the child’s needs. Parents with schizophrenia, bipolar disorder, major depression, post-traumatic stress disorder, personality disorders, autism, intellectual disability, acquired brain injury and histories of substance dependence parent successfully every day, and the court’s task is to identify what, if anything, in a particular parent’s circumstances calls for a protective response.

Several points recur in the evidence that persuades a court that a condition is managed:

• Insight: the parent recognises the condition, understands its effect on them and on the child, and can describe their early warning signs.
• Engagement with treatment: a continuing relationship with a treating practitioner, adherence to medication where prescribed, and a willingness to have that engagement evidenced.
• A relapse plan: who the parent will call, who will care for the child, and how the other parent will be told, if the parent becomes unwell.
• Stability over time: a period of settled functioning, work or study, housing and routine.
• Protective factors: family support, a stable partner, community and, where possible, a co-operative relationship with the other parent.

Where a parent has a disability affecting cognition or communication, the Standards of Practice call for assessment arrangements that allow full participation, and it is legitimate to ask for adjustments — longer or split interviews, a support person, plain-language explanation, or an expert with relevant experience. Assessments that measure a parent against an unmodified standard, rather than assessing what the parent can do with available supports, are open to challenge. Treatment itself should be presented for what it is: evidence of responsibility, not of weakness.

When mental health is weaponised: unfounded allegations

A parent’s mental health is sometimes raised not because it presents any risk to a child but as a litigation tactic — to explain away legitimate complaints, to justify withholding a child, or to undermine a parent’s credibility. Common patterns include describing an ex-partner as having a personality disorder without any diagnosis; characterising distress caused by the separation or by violence as instability; recasting ordinary disagreement as evidence of illness; and pressing for repeated assessments in the hope that something will be found.

How the process deals with this:

• Allegations are not evidence. A bare assertion that a parent is “unstable” or “has BPD” carries little weight. The court looks for evidence of conduct affecting the child.
• An independent assessment tests the allegation. For a parent who is the subject of an unfounded claim, an assessment by a single expert is frequently the fastest route to having it disposed of by someone neither party controls. Resisting assessment can prolong the issue.
• Treating evidence answers it. A letter from a treating practitioner confirming that a person has no relevant diagnosis, or that a condition is managed and has no bearing on parenting, is powerful.
• Repeated assessments are controlled. The single-expert regime, the permission requirement in rule 7.08 and the court’s duty to manage child-related proceedings actively and without undue delay (section 102NE) all work against serial assessment.
• Credibility cuts both ways. A parent shown to have made allegations without foundation, or to have exaggerated a known condition, may find their evidence on other matters discounted, and the conduct may itself be relevant to their capacity to support the child’s relationship with the other parent.

None of this means genuine concerns should be suppressed. A parent who has real, specific worries about the other parent’s mental health and its effect on a child should raise them, with whatever evidence exists, and ask for the appropriate assessment. The distinction the court draws is between concern grounded in conduct and accusation grounded in a diagnosis the accuser has supplied.

Assessing a child’s mental health

Sometimes the question is not a parent’s mental health but the child’s: a child who is anxious, withdrawn, aggressive, refusing to see a parent, or presenting with symptoms one parent attributes to the other’s care. Several provisions govern how that is assessed.

• Child Impact Reports and Family Reports assess children’s functioning and needs within the family context, and a section 62G report must ordinarily ascertain and include the child’s views (section 62G(3A)). Children are interviewed or observed in person and told that what they say is not confidential. No child is required to express a view (section 60CE), and the weight given to a child’s views depends on their age, maturity and the context in which the views were formed and expressed.
• Examination for the independent children’s lawyer. Where an ICL is appointed, the court may on the ICL’s application order a parent, a person with whom the child lives, spends time or communicates, or a person with parental responsibility to make the child available for an examination for a report for the ICL’s use (section 68M). The ICL must generally meet the child and give them an opportunity to express views, subject to exceptions for very young children and exceptional circumstances (section 68LA(5A) and (5B)).
• Restrictions on examinations relating to abuse. Section 102A applies where a child has been “examined” — subjected to a medical procedure, or examined or assessed by a psychiatrist or psychologist (other than a family counsellor or family consultant) — for the purpose of deciding whether to bring, or in connection with, proceedings alleging abuse or risk of abuse. Evidence resulting from such an examination is not admissible without the court’s leave, other than the first examination a person arranges to found the allegation. In deciding whether to grant leave the court must consider whether the examination is likely to provide relevant information not otherwise obtainable, the examiner’s qualifications, whether the distress caused to the child is outweighed by the value of the information, and any distress already caused by earlier examinations (section 102A(3)). The provision exists to prevent children being repeatedly examined by successive experts retained by each parent.
• Treating clinicians for children. A child’s own psychologist, paediatrician or school counsellor may give treating evidence within rule 7.01, and their records may be subpoenaed subject to the same objection and protected-confidence procedures; a child’s protected confidence may be the subject of an application by an ICL, a parent or a carer under sections 102BC and 102BD.

Two cautions. Do not arrange a private psychological assessment of a child for use in proceedings without advice: beyond the first examination, section 102A may make the evidence inadmissible, and unilateral assessments are frequently criticised as placing the child in the middle of the dispute. And do not confuse a child’s therapy with an assessment; the Standards of Practice require the two to be kept separate, and a child’s therapist who is drawn into giving forensic opinions may compromise both the therapy and the evidence.

Capacity to conduct proceedings: litigation guardians

Occasionally a party’s mental health raises a different question — not whether they can parent, but whether they can litigate. Under rule 3.12 a person needs a litigation guardian if they do not understand the nature and possible consequences of the proceeding, or are not capable of adequately conducting, or giving adequate instructions for the conduct of, the proceeding. A minor is taken to need a litigation guardian unless the court orders otherwise. A person who needs a litigation guardian may start, continue, respond to or be included in a proceeding only through that guardian, who must do what the Rules require of the party and may do what the Rules permit for the party’s benefit (rule 3.13).

The test is functional and specific to the litigation. A diagnosis, a hospital admission, or even an order under State guardianship legislation does not of itself mean a person lacks capacity to conduct a family law proceeding, and most parents with mental health conditions have no difficulty instructing lawyers or representing themselves. Where capacity is genuinely in doubt, medical evidence addressing the rule 3.12 criteria is usually obtained, and the court determines the question. A litigation guardian acts in the party’s interests in the litigation; the appointment says nothing about the party’s parenting capacity, which remains to be decided on the evidence under section 60CC.

Practical checklists

If your own mental health has been raised

• Tell your lawyer everything relevant, early — diagnosis, treatment, admissions, medication, substance use. Surprises in a report are far more damaging than facts disclosed in advance.
• Obtain a concise letter from each treating practitioner covering diagnosis, treatment history, compliance, current functioning and prognosis, and, if they are able to comment, any effect on parenting.
• Continue treatment and keep records of appointments. If you are not in treatment and a concern has been raised, get advice about whether to engage now.
• Prepare a written chronology of your mental health history to take to the assessment, and a short relapse plan.
• Consider whether to propose a single-expert assessment yourself rather than resist one; discuss the choice of discipline and the letter of instruction with your lawyer.
• Take advice before objecting to a subpoena for your records; consider whether the records help you.
• Ask for adjustments to the assessment process if you need them, and about a support person for CCS interviews.

If you have concerns about the other parent

• Record specific incidents affecting the children — dates, what happened, who saw it, what the children said — contemporaneously and factually.
• Gather independent evidence where it exists: police, ambulance or hospital involvement; school observations; messages that demonstrate the behaviour.
• Do not offer a diagnosis. Describe conduct and its effect on the children and let the assessor and the court draw conclusions.
• Ask for the assessment that fits the concern — a Child Impact Report to screen risk early, a Family Report for a comprehensive assessment, a single expert where a diagnosis or prognosis is genuinely in issue.
• Consider whether the arrangements you propose are proportionate to the risk, and whether conditions or supervision would meet it.
• Do not involve the children in the concern, question them about the other parent’s health, or arrange your own assessment of them without advice.

Before any assessment appointment

• Confirm date, time, place or link, duration, who attends and who brings the children.
• Raise safety concerns, interpreter needs and disability adjustments in advance.
• Understand that nothing you say is confidential and that the report will be evidence.
• Prepare the children honestly and without coaching; do not debrief them afterwards.
• Do not contact the report writer after your interview; route anything further through your lawyer.
• Do not share the report, or any part of it, with anyone outside the proceedings without advice.

When to get advice

Mental health in parenting proceedings is an area where early, specific advice changes outcomes. The choices that matter most — how to disclose a history, whether to propose or resist an assessment, which discipline the expert should come from, what the letter of instruction asks, whether to object to a subpoena, and how to respond to a report — are made before the assessment happens, and they are hard to unmake afterwards. The same is true for a parent raising concerns about the other: framing a concern in terms of the child’s experience rather than a diagnosis, and asking for the right assessment at the right stage, is far more effective than escalation.

Most parenting disputes, including those in which mental health is an issue, are resolved by agreement — often after a Child Impact Report or Family Report has given both parents an independent view of the children’s needs — and recorded in consent orders or a parenting plan. Our guide to parenting arrangements after separation explains the options, and our complete guide for separating couples places parenting within the wider process.

Parke Lawyers advises parents across Victoria in parenting matters in which mental health, family violence and risk are in issue, including the selection and instruction of single experts, responding to Family Reports and expert reports, subpoena objections and protected-confidence applications. Our family law team can be contacted on 134 134 or you can request a consultation. If you or someone you know is in crisis, call 000 in an emergency or Lifeline on 13 11 14.

Frequently Asked Questions

Sources and further reading

• Family Law Act 1975 (Cth) — current compilation, including sections 4(1) (definition of abuse), 4AB, 11A–11G, 60CA, 60CC, 60CE, 60CF, 62G, 65L, 65LA, 67ZA, 68LA, 68M, 102A, 102BA–102BF, 102NE, 102NL, 102NN and 114Q
• Federal Circuit and Family Court of Australia (Family Law) Rules 2021 — including rules 3.12–3.13 (litigation guardians), Part 6.5 (subpoenas, including rules 6.27, 6.36 and 6.38) and Part 7.1 (expert evidence, including rules 7.01–7.10 and 7.25–7.28)
• Family Law Regulations 2024 (Cth) — regulation 40 (appointment of family consultants)
• Federal Circuit and Family Court of Australia — Family Reports
• Federal Circuit and Family Court of Australia — Child Impact Report: FAQs
• Federal Circuit and Family Court of Australia — Reports prepared by Court Children’s Service
• Federal Circuit and Family Court of Australia — Court Children’s Service
• Federal Circuit and Family Court of Australia — Court Child Experts: FAQ
• Federal Circuit and Family Court of Australia — Family Consultant FAQs
• Federal Circuit and Family Court of Australia — Expert witnesses in family law
• Australian Standards of Practice for Family Assessments and Reporting (February 2015) — published by the Federal Circuit and Family Court of Australia
• Federal Circuit and Family Court of Australia — Support people in Court Children’s Service adult assessments
• Federal Circuit and Family Court of Australia — Do you have fears for your safety when attending court?

This article is general legal information about Australian law as at 4 September 2026. It is not legal advice and does not take account of your circumstances. Legislation, court rules and case law change; obtain advice tailored to your situation before acting.