Background

The Federal Circuit Court (the Court) is seeking to better facilitate the early identification of a range of risks in parenting matters that come before the Court.

The prevalence of allegations of risk in proceedings is of particular significance for the Federal Circuit Court as most parenting applications are commenced and determined in the Court. 

Sections 67z and 67zba of the Family Law Act require parties to proceedings and independent children's lawyers to file a notice in the prescribed form if they allege that a child to whom the proceedings relate has been abused or is at risk of abuse or there has been family violence by a party to the proceedings or there is a risk of family violence by a party to the proceedings.  The currently prescribed notice is the Form 4 - Notice of Child Abuse, Family Violence or Risk of Family Violence the reporting of risk.  Compliance with the obligation to file the notice has been identified as an ongoing problem.

The Court has decided to introduce a new form of Notice of Risk to replace the currently prescribed Form 4 to better identify a range of risks to children in parenting proceedings in the Court and to improve compliance with the legislative requirements.

The Notice of Risk is designed to be a broad based initial risk screening device to assist the Court to identify at the earliest opportunity those matters in which allegations of risk are made so that the alleged risks can be addressed in a timely fashion.

The Court has conducted a pilot of the Notice of Risk in parenting proceedings filed in the Court in South Australia from 4 February 2013. The version of the Notice used in the pilot is Attachment A to this document.  The pilot was given effect by way of Practice Direction 2 of 2012 – Notice as to Risk Pilot – Parenting Proceedings – Federal Magistrates Court – South Australia (see Attachment B).

Purpose

The purpose of the pilot was to trial the operation of the Notice of Risk and to compare it to the operation of the Form 4 in identifying matters in which there are alleged risks to children of the type referred to in ss.67z and 67zba of the Family Law Act 1975

The pilot required all parties in parenting proceedings to file a Notice of Risk.  Only those notices that alleged risks to children of the type referred to in ss.67z and 67zba of the Family Law Act 1975 were referred to Families SA. The Notice was designed to enable easy identification of those which were required to be sent to the child protection authorities and those which were not.

Notice of Risk

In addition to addressing risks which fall within the ambit of section 67Z and section 67ZBA, the Notice of Risk addresses the requirement imposed by section 69ZQ for the court to ask each party particular questions concerning child abuse and family violence. It is also designed to identify other risks which do not fall within the ambit of any of the notification provisions but which, nevertheless, may be of relevance to the Court in protecting children from the risk of harm.

In drafting the proposed Notice of Risk the following factors were considered:

  • The current Form 4 is not complied with in all instances where allegations are made.  Judges often have to order parties to file the Form.  There is then a delay in the notification to the relevant child protection authority. By requiring all parties to parenting applications to file a Notice of Risk, there is likely to be a greater compliance with the legislative requirements and more timely notification to the relevant child protection authority.
  • Family violence and child abuse understandably have a prominent place in the Family Law Act.  There are, however, other issues which can pose a serious risk to children.  These include mental illness of a parent, drug and alcohol abuse and serious parental incapacity.  A form which seeks to identify a wider range of risks will aid the effective early intervention case management pathway of the Federal Circuit Court.
  • The requirement for the filing of the Notice by all parties will facilitate the collection of more accurate statistics about the number of parenting cases in which particular allegations are made.

Instructions were attached to the form to assist litigants and practitioners with completion. The relevant statutory provisions were set out in full and the same terminology was used in the body of the form. The instructions were designed to aid compliance with the statutory requirements.

Process

The requirement to file a Notice of Risk in all matters involving children is a departure from the current requirement to file a Form 4 only in instances where allegations are made that come within sections 67Z or 67ZBA of the Family Law Act 1975.

The implementation of the pilot required the support of client service officers (CSOs) in the family law registry who were advised as to their obligations by way of client service instructions.

Initial instructions to CSOs were issued in early January 2013 (See Attachment C) with amended instructions issued on 18 July 2013 to address issues raised in the interim evaluation. (See Attachment D). Changes were also made to the process in respect to the material sent to Families SA in March 2013.

The pilot required client service officers of the Family Law Registry to send a copy of the Notice of Risk and the associated affidavit material to Families SA (FSA)  only where 'yes' was answered in response to question 2(a) or 2(b) on the notice.

Accordingly only those Notices attracting the statutory notification requirements were to be sent to the FSA. However, it appears that registry staff were initially sending all notices to FSA thereby inflating the work effort required.

This situation was rectified as of 1 March 2013 with only the notices meeting statutory notification requirements as set out in sections 67Z or 67ZBA of the Family Law Act 1975 being sent to FSA.  

The requirement of sending affidavit material ceased in March at the request of Families SA. The affidavit material created a range of workload difficulties for both the CSOs and FSA. CSOs were required to copy and forward significant amounts of material and this placed pressure on registry resources. Families SA felt obligated to read all the material before providing a response. This had an overwhelming effect on their resources at a time when they had significant work pressures and were in the midst of an organisational restructure. In turn this affected the timely response to notifications. That pressure was relieved to some extent when affidavits were no longer sent with the Notice.

Statistics

The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 introduced various changes to the Family Law Act 1975 which came into effect on 7 June 2012. Notably the amendments expanded the definitions of 'abuse' and 'family violence'.  The definitions are contained in the Notice of Risk instructions in Attachment A.

In light of the expanded definitions, the Court expected to see an increase in the number of notifications pursuant to in ss.67z and 67zba of the Family Law Act 1975. This expectation was realised with a significant increase in the number of Form 4s lodged throughout Australia.  The Form 4 filing figures for the calendar years 2012 and 2013 are set out in Graph 1 below. These numbers are drawn from the Courts case management system, Casetrack.  For the purpose of collation of statistics, all Notices of Risk were counted in Casetrack as a Form 4.  As can be seen from Graph 1, the number of Form 4s filed nationally increased from 1915 in 2012 to 5605 in 2013. Excluding Adelaide, Form 4 filings in 2013 increased nationally by 101 percent from 1800 in 2012 to 3779 in 2013.

It was expected that in Adelaide the filings of the Notice of Risk would be significantly higher given the requirement that the Notice be filed by applicants and respondents to all parenting matters, not just those in which allegations were made.  Again, that expectation was realised with the filings in Adelaide increasing from 115 in 2012 to 1826 in 2013.

Graph 1: Form 4s Filed Federal Circuit Court 2012 and 2013

Graph 1: Form 4s Filed Federal Circuit Court 2012 and 2013

The pilot was established only in Adelaide. Unfortunately there were problems with data capture as the Court's case management system, Casetrack, could not be set up to accommodate data collection at a single discrete location. The statistical analysis therefore has relied on data capture from Casetrack and manual statistics collected by CSOs and chambers staff.

As part of the process CSOs were required to collect, check and record a Notice in all parenting matters filed, rather than only those where a Form 4 is filed. CSOs were required to individually record any referral to FSA following the filing of the Notice..  Associates to the Federal Circuit Court judges collected data in respect to the responses received by FSA.

It is anticipated that the data collection would be automated should the Notice of Risk be adopted nationally by the Court. This would most likely allow for more sophisticated analysis and remove the workload and other issues associated with manual data collection.

The numbers in Graph 1 count all Notices of Risk filed in Adelaide but do not represent the number of matters in which a notification to the child protection authority was required under the Family Law Act. 

Graph 2 sets out the total number of parenting  applications filed in Adelaide in 2013 and the number of Notices of Risk  that were sent as notifications to Families SA that year.  It also depicts the Notices of Risk as a percentage of the filings in childrens matters in Adelaide during 2013. This data has been collected both manually and from Casetrack.

Graph 2: Childrens Matters Filed, NoR to Families SA and NoR as a percentage of childrens matters

Graph 2: Childrens Matters Filed, NoR to Families SA and NoR as a percentage of childrens matters

 

In the calendar year 2013 a total of 1252 applications were filed with causes of action relating to children. Notices of Risk were forwarded to Families SA in respect to 697 or 56 per cent of the applications filed.

Of the 697 Notices of Risk sent to Families SA, 167 were second or third Notices in the one matter. Subsequent Notices should be sent to the child protection authority if there have been further incidents involving child abuse, family violence or the risk of either but not otherwise.  The potential resource impact on the child protection authority of multiple notifications is obvious and warrants special procedures being set up to ensure only appropriate subsequent Notices are sent. 

Families SA responded to 449 or 64 per cent of the Notices of Risk referred to it. This response level was affected on occasion by the short listing of matters and Families SA then having insufficient time to respond. It was agreed that the Court would endeavour to allow 14 days between filing and listing to allow for a response. This time frame was not achievable on all occasions because of urgency. Responses were recorded against 64 second or third Notices in the one matter.

Graph 3 compares the percentage of parenting matters filed in Adelaide in which a Notice of Risk was referred to Families SA as a notification pursuant to ss.67z or 67zba to the number of Form 4s lodged in Dandenong, Parramatta and Melbourne. Dandenong and Parramatta were chosen as comparators having similar filing numbers.  Melbourne is clearly a significantly bigger filing registry.

The analysis demonstrates the impact of filing a Notice of Risk in all applications.

In Adelaide 56 per cent of all children's matters filed in the 2013 calendar year required a notification to the child protection authority. In Dandenong the figure for the same period was 30 per cent, Parramatta 35 per cent and Melbourne 25 per cent. 

Graph 3: Comparative analysis of Notices of Risk between locations

Graph 3: Comparative analysis of Notices of Risk between locations

The comparative analysis between locations suggests that there has been a significant lack of compliance with legislative requirements and, consequently, a significant 'under reporting 'of risk in Dandenong, Parramatta and Melbourne.

Prior to implementing the pilot there was concern raised regarding the potential for litigants to include matters that did not fall within the ambit of ss.67z or 67zba. That concern was not realised, lending weight to the concerns regarding lack of compliance with legislative requirements.

Qualitative Analysis

This analysis has been compiled by way of discussions with various participants within the Pilot.

Judges

All five federal Circuit Court judges in Adelaide were interviewed regarding the NoR. With the exception of one judge they indicated a reliance on the affidavit material filed to identify risk issues, rather than reliance on the Notice of Risk.

All judges found the response from FSA to be particularly useful in the effective early intervention case management pathway of the Federal Circuit Court.

Families SA

FSA have provided feedback on the pilot and its impact on the agency and indicated:

  • The increase in notifications placed considerable strain on the limited resources of FSA, particularly at a time when the agency was undergoing restructure
  • There has been a noticeable increase in the number of 69ZW orders and subpoenas.
  • The strain was mitigated to some degree by the Court agreeing not to send affidavit material and by clarifying timelines in respect to responses. The timelines became important particularly in respect to matters listed with urgent hearings.
  • The threshold for reporting of risk to children under South Australian State legislation is set at a higher level than that required by the definitions in the Family Law Act 1975.

The Children's Protection Act 1993 – SA defines risk as follows:

Part 1 - Preliminary
Section 6 - Interpretation (2)

For the purposes of this Act, a child is at risk if—

(aa) there is a significant risk that the child will suffer serious harm to his or her physical, psychological or emotional wellbeing against which he or she should have, but does not have, proper protection; or

  1. the child has been, or is being, abused or neglected; or
  2. a person with whom the child resides (whether a guardian of the child or not)—
    1. has threatened to kill or injure the child and there is a reasonable likelihood of the threat being carried out; or
    2. has killed, abused or neglected some other child or children and there is a reasonable likelihood of the child in question being killed, abused or neglected by that person; or
  3. the guardians of the child—
    1. are unable to care for and protect the child, or are unable to exercise adequate supervision and control over the child; or
    2. are unwilling to care for and protect the child, or are unwilling to exercise adequate supervision and control over the child; or
    3. are dead, have abandoned the child, or cannot, after reasonable inquiry, be found; or
  4. the child is of compulsory school age but has been persistently absent from school without satisfactory explanation of the absence; or
  5. the child is under 15 years of age and is of no fixed address.

The broadening of the definition of risk in the Family Law Act 1975 has required notifications to FSA that would not have reached the threshold for reporting under state legislation. FSA requested that the term 'significant risk' be used in respect to the reporting of risk in family law matters however the Court advised that it was bound by the legislative requirements in the Family Law Act 1975.

Although FSA understood the obligations of the Court, the differences in threshold caused some difficulty. All Notices of Risk are currently treated as notifications in the SA child protection system which creates a lifetime record against a person.  A high percentage of Notices of Risk upon assessment do not meet the SA notification threshold and the resource impact of assessing these notifications is significant with no material benefit.

Legal Practitioners

Penelope Kari, Chair of the Family Law Section of the Law Council of South Australia indicated that it had undertaken a survey of their members to gain an understanding of their views regarding the Notice of Risk.

The complete survey and responses are attached as a separate document to this report. In summary the results indicated the following:

  • 65% of those surveyed found the form easy to navigate
  • 55.8% did not find the NoR assisted in identifying risk
  • 61.5% did not find the current form better assists in identifying risk
  • 76.9% thought that the SRLs would not find the form easy to navigate
  • 47.9% thought that the NoR would encourage SRLs to report more instances of risk
  • 56.3% thought that the NoR lead to notifications not supported by the facts
  • 72.9% thought that the requirement to file the NoR in all matters would not lead to greater legislative compliance
  • 2.1% indicated that FSA had intervened in matters as a result of the NoR

Various comments included:

  • It should be optional except where allegations are being made by a party at risk
  • Compulsory form not necessary in most matters
  • I consider the form a waste of time
  • complete waste of time and government resources

In considering the responses from the legal practitioners it is important to bear in mind that the primary objective of the Notice is to assist the judge in identifying risk at the earliest opportunity.  The practitioners who completed the survey may be very compliant with the statutory obligations in which case they would see little value in requiring all parties to file a Notice of Risk.  However, the statistics from the pilot support anecdotal evidence of significant non-compliance and underreporting which is likely to be addressed through the compulsory nature of the Notice.

The requirement for parties or their legal representatives to set out the allegations in detail is no doubt time consuming.  Families SA specifically requested that affidavits not be sent to them which meant the allegations had to be particularised in the Notice.  In some other jurisdictions, such as Victoria, the child protection authority prefers to read the affidavits to gain some context to the allegation.  Provision of the affidavits to the child protection authority places different resource pressures on the Registry which could be ameliorated through e-filing as the documents could be provided electronically.  Alternatively, any party alleging risk could be required to file an extra copy of the affidavit for forwarding on to child protection.

Legal Aid South Australia

Legal Aid SA did not indicate any particular issues with the Notice of Risk or the process itself. They have indicated that they would like to be able to e-file the Notice as opposed to having to physically lodge it with the registry. E-filing will be made available should the Court adopt the Notice of Risk nationally.

Client service officers

The initial instruction to CSOs requiring appropriate notices to be sent to FSA along with affidavit material placed a strain on resources in the registry. This strain was mitigated by removing the requirement to forward affidavit material. While the filing of a Notice of Risk with all applications and responses has increased the workload, no significant concerns have been raised by the CSOs.

The capacity to e-file the Notice of Risk will further reduce the workload for CSOs in respect to this notice.

Summary and Conclusion

  • The pilot was introduced in Adelaide in February 2013 and some minor changes regarding process were made during the pilot.
  • The statistical information indicates a higher level of reporting of risk as a percentage of children's matters compared to other locations.
  • Concerns about lack of compliance with legislative requirements for reporting of risk appear to be justified given the increased level of reporting and the absence of any evidence to suggest that the identified risk is unsupported by the facts.
  • Judges in Adelaide still tend to rely on the affidavit material to identify risk issues in preference to the Notice of Risk but value the response from Families SA.
  • Families SA provided feedback regarding the pilot and/or the Notice of Risk and expressed concerns particularly with regard to the different definitions of risk and thresholds for intervention in the Family Law Act and State legislation.
  • The Family Law Committee of the Law Society of South Australia has surveyed its South Australian members and that survey has indicated that, generally, legal practitioners do not see any value in the form.
  • The Legal Services Commission of South Australia (Legal Aid) do not have any particular concerns with the Notice Of Risk but would appreciate the capacity to eFile.
  • Workload concerns raised by client service officers appear to have been mitigated and would be further mitigated if the Notice of Risk could be eFiled.

The Notice of Risk is intended to be an alternative to the current Form 4 (Notice of Child Abuse, Family Violence or Risk of Family Violence), not an additional form.  It is also intended to assist the Court in fulfilling its obligation pursuant to s.69ZQ of the Family Law Act. 

The comparative statistical information gathered in the pilot indicates that throughout Australia there is currently a general lack of compliance with the legislative requirements in respect to the reporting of risk. The requirement to file a Notice of Risk in all applications and responses in matters relating to children improved compliance in Adelaide. The reporting of risk as a percentage of all children's matters filed in Adelaide in 2013 was 56 per cent as opposed to Dandenong at 30 per cent, Parramatta at 35 per cent and Melbourne at 25 per cent.

Initial concerns regarding the workload for client service officers in the registry were mitigated to a large degree over the course of the pilot. The development of the capacity to e-file the Notice of Risk will further mitigate the workload and will address the issues raised by Legal Aid.

Concerns raised by legal practitioners about the additional time taken to complete the form even where no allegations are raised are acknowledged.  However, the majority of legal practitioners found the form easy to navigate and ticking the boxes marked "no" should not be too time consuming.  More time is obviously required when allegations are made but parties are required to complete the Form 4 in those circumstances in any event.  The compulsory nature of the Notice of Risk appears to have enhanced compliance and addressed an apparent under-reporting of risk. 

The Notice of Risk will be of limited utility to those judges who routinely read the entire file in every parenting matter which comes before them in an intake list as they will be able to identify for themselves the allegations of risk in each case.  The major impact of the Notice of Risk will be felt in the following circumstances:

  • Where the risk issues are not properly identified in the affidavit material, for example, by self-represented litigants but, in response to a specific question in the Notice, a risk issue is identified; and
  • Where, due to volume and workload issues, a judge is unable to read every parenting file in an intake list.  In that case the Notice of Risk will allow the judge to identify at a glance whether or not there are allegations of risk and, if there are, to enquire further about them.

In the absence of any other broad based risk screening tool it is considered that the advantages of adopting the Notice of Risk nationally outweigh the disadvantages.

It is recommended that the capacity to e-file the Notice of Risk should be developed as a matter of priority.

Attachment A

Federal Magistrates Court

Instructions for completion

NOTICE AS TO RISK

  1. This form must be completed and filed and served with every application or response in a proceeding seeking parenting orders. 
  2. If no risk is alleged, the form must still be filed and served setting out that no risks are alleged. 
  3. The purpose of this form is to identify whether there are alleged risks to the child or children in the proceedings of the type defined in ss.67z and 67zba of the Family Law Act 1975.  This form is also required to fulfil the court's obligation pursuant to s.69zq.  These sections provide:
  4. 67z  Where interested person makes allegation of child abuse          

    (1) This section applies if an interested person in proceedings under this Act alleges that a child to whom the proceedings relate has been abused or is at risk of being abused.

    (2) The interested person must file a notice in the prescribed form in the court hearing the proceedings, and serve a true copy of the notice upon the person who is alleged to have abused the child or from whom the child is alleged to be at risk of abuse.

    67zba  Where interested person makes allegation of family violence           

    (1) This section applies if an interested person in proceedings for an order under this Part in relation to a child alleges, as a consideration that is relevant to whether the court should make or refuse to make the order, that:

    (a) there has been family violence by one of the parties to the proceedings; or

    (b) there is a risk of family violence by one of the parties to the proceedings.

    (2) The interested person must file a notice in the prescribed form in the court hearing the proceedings, and serve a true copy of the notice upon the party referred to in paragraph (1)(a) or (b).

     

    69zq  General duties   

    (1) In giving effect to the principles in section 69ZN [for conducting child-related proceedings], the court must:

    (aa) ask each party to the proceedings:

    (i) whether the party considers that the child concerned has been, or is at risk of being, subjected to, or exposed to, abuse, neglect or family violence; and

    (ii) whether the party considers that he or she, or another party to the proceedings, has been, or is at risk of being, subjected to family violence;

    When completing this form you should carefully read the specific definitions of the terms 'abuse' and 'family violence' in the Family Law Act 1975, which provides:

    4  Interpretation

    (1)  In this Act, the standard Rules of Court and the related Federal Magistrates Rules, unless the contrary intention appears:

    abuse, in relation to a child, means:

    (a)  an assault, including a sexual assault, of the child; or

    (b)  a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

    (c)  causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

    (d)  serious neglect of the child.

    4AB  Definition of family violence etc.

    (1)  For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

    (2)  Examples of behaviour that may constitute family violence include (but are not limited to):

    (a)  an assault; or

    (b)  a sexual assault or other sexually abusive behaviour; or

    (c)  stalking; or

    (d)  repeated derogatory taunts; or

    (e)  intentionally damaging or destroying property; or

    (f)  intentionally causing death or injury to an animal; or

    (g)  unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

    (h)  unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

    (i)  preventing the family member from making or keeping connections with his or her family, friends or culture; or

    (j)  unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

    (3)  For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

    (4)  Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

    (a)  overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or

    (b)  seeing or hearing an assault of a member of the child's family by another member of the child's family; or

    (c)  comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or

    (d)  cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or

    (e)  being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

  5. If the relevant risk is identified after the application or response is filed, an amended Notice of Risk must be filed and served as soon as possible.
  6. This form will not be accepted unless the risks are particularised, and reference is made to the relevant affidavits or other documents in the proceedings.
  7. The particulars of each risk identified in Questions 2 to 4 should briefly set out the nature of the risk, and should not ordinarily exceed 50 words.  Specific references (including paragraph numbers) should be made to the detailed account of the facts or circumstances which should be set out in the affidavit or other material.  For example:

5. Particulars of the risk(s) alleged are as follows:

Particulars

Name of document, date of filing and paragraph number(s)

Date of Incident

Child Abuse and Family Violence: In May 2011 the child Jason was struck on the back of the head by the respondent's partner causing a 3cm laceration. Para [26] of Affidavit of Applicant, filed 30 April 2012 May 2011
Abuse of Drugs: The children are at risk as the respondent is a regular user of heroin, and unable to supervise the children when they are in the respondent's care Par [42] of Affidavit of Applicant filed 30 April 2012 From June 2009 and continuing

7.     If you consider that there are risks which are not alleged in the documents filed in the proceedings, you must answer Question 4 and provide particulars of the considerations that you rely upon in answer to Question 4.

9.    Details of the adults and children involved in these risks are to be provided to enable them to be clearly identified. The list must include the children or adults at risk.  For example:

7.     Particulars of relevant adults or children:

Name

Last Known Address

Date of Birth

Description/Role

John Smith 21 Known Pde, Kew 02/03/1985 Applicant Father
Jane Smith 304 Unknown St, Kew 04/05/1985 Respondent Mother
Jason Smith 304 Unknown St, Kew 06/07/2008 Child of parties
Pete Newe 304 Unknown St, Kew Unknown Partner of Mother

Remove these instruction sheets before filing


 

IN THE FEDERAL MAGISTRATES COURT

OF AUSTRALIA

REGISTRY: ........................................................

Applicant's Client ID       _______________
Respondent's Client ID      ______________
File number       ______________________
Next Court date (if known)      
 

.....................................................................

Applicant

.....................................................................

Respondent

.....................................................................

Other party (if applicable)

Repeat as necessary for additional parties

NOTICE AS TO RISK

1. This Notice is filed by:

Applicant                                                   Respondent               

Other Party                                                Specify: …………………………………….

2. Has there been child abuse or family violence, or is there a risk of child abuse or family violence? (See sections 67z, 67zba and sections 4 & 4AB of the Family Law Act 1975)

(a)  Do you allege that a child to whom the proceedings relate has been abused or is at risk of being abused? (See s.67z)

Yes                        No 

Filed on behalf of  
Prepared by       Lawyer's code      
Name of law firm      
Address for service in Australia      
  State       Postcode      
Email       DX      
Tel       Fax       Attention      

(b) Do you allege that there has been family violence or is there a risk of family violence, by one of the parties to the proceedings, which is a relevant consideration in these proceedings?

Yes                  No 

(c) Do you allege that there has been family violence or is there a risk of family violence, by a person who is not a party to the proceedings, which is a relevant consideration in these proceedings? (See s.67zba)

Yes                  No 

Particulars

Name of document, date of filing and paragraph number(s)

Date

     
     
     
     

3. Are there other facts or circumstances that you allege pose a risk to a child the subject of the proceedings?

(a) Do you allege that a child(ren) is at risk because a party to the proceedings suffers mental ill-health?

Yes                        No 

(b)  Do you allege that a child(ren) is at risk because a party to the proceedings abuses drugs or alcohol?

Yes                        No 

(c) Do you allege that a child(ren)  is at risk because a party suffers a serious parental incapacity?

Yes                        No 

(d) Do you allege that a child(ren)  is otherwise at risk of neglect or abuse?

Yes                        No 

Particulars

Name of document, date of filing and paragraph number(s)

Date

     
     
     
     

4. Duty of the Court to enquire under section 69ZQ(1)(aa) of the Family Law Act, 1975.

(a) Do you consider that a child has been, or is at risk of being, subjected to, or exposed to, abuse, neglect or family violence not alleged in Questions 2 or 3 above?

Yes                        No    

(b) Do you consider that you, or another party to the proceedings, has been, or is at risk of being, subjected to family violence not alleged in Questions 2 or 3 above?

Yes                        No   

Particulars

Name of document, date of filing and paragraph number(s)

Date

     
     
     
     

5. Particulars of the identity of all relevant adults and children:

Name

Last Known Address*

Date of Birth

Description/Role

       
       
       

*If you fear for your safety or the safety of your children, you do not need to disclose your residential address

 

Signature:                   ....................................................

Signed by:                    person giving this notice      lawyer

Date:                           ........../.........../..............

Notice prepared by:      person giving this notice      lawyer

(Print name if lawyer) ....................................................

 

Attachment B

FEDERAL MAGISTRATES COURT OF AUSTRALIA

Practice Direction No 2 of 2012

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PILOT

NOTICE AS TO RISK

(Parenting Proceedings - Federal Magistrates Court - South Australia)

Introduction

In light of recent family violence amendments to the Family Law Act 1975by way of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, the Federal Magistrates Court is seeking to better facilitate the early identification of risk in parenting matters when allegations are raised.

The prevalence of allegations of risk in proceedings is of particular significance for the Federal Magistrates Court as most parenting applications are commenced in the Court. 

The Court currently applies the rules prescribed by the Family Court in Part 2.3 of the Family Law Rules 2004 and the accompanying Form 4 notification.

The Court is seeking to adopt a new form of Notice of Risk to replace the currently prescribed Form 4 to better identify risks in parenting proceedings in the Federal Magistrates Court.

Before considering any formal rule amendment, the attached Notice of Risk is to be piloted in parenting proceedings filed in the Court in South Australia only as from 4 February 2013.

It is proposed that following feedback from the South Australian pilot the Court will thereafter consider possible implementation nationally.

The attached Notice of Risk will be required to be filed with every Application or Response in proceedings seeking parenting orders in Federal Magistrates Court proceedings in South Australia  filed on or after 4 February 2013.

In addition to addressing risks which fall within the ambit of section 67Z and section 67ZBA, the Notice of Risk also addresses the general duty of the Court as required by section 69ZQ and aims to facilitate the identification of other risks which do not fall within the ambit of the notification provisions but which may be of relevance to the Court.

In drafting the proposed Notice of Risk the following factors have been considered:

  • The current Form 4 is not complied with in all instances where allegations are made. By requiring all parties to parenting applications to complete a Notice of Risk in all proceedings, there is likely to be a greater compliance with the legislative requirements.
  • The utility of a form which seeks to  identify a wider range of risks will aid the effective early intervention case management pathway of the Federal Magistrates Court
  • The reference to forms by numbers is not helpful to litigants and the title should be more reflective of the purpose of the form.

The instructions attached to the form are intended to assist with completion. The relevant statutory provisions have been set out in full and the terminology picked up in the body of the form. It is hoped that the format is one which is easier to complete for litigants and practitioners and will aid their compliance with the statutory requirements.

   

J PASCOE

Chief Federal Magistrate

 

Attachment C

Client Service Instructions

Notice of Risk

Federal Magistrates Court South Australia Project 

All applications and responses in parenting matters filed in the Federal Magistrates Court in Adelaide must also have Notice of Risk filed from 4 February 2013. This includes matters that are efiled.

Client service staff must check:

  1. to ensure that the Notice of Risk is filed as required
  2. check to see which box in question 2(a) is ticked (note one box must be ticked)
  3. if the yes box has been ticked:
    1. and the matter requires and urgent listing/abridgment the matter is referred to a registrar for listing and notification is sent to the prescribed welfare authority
    2. the matter is listed within 8 weeks and notification is sent to the prescribed welfare authority
    3. ensure that the matter is entered into the data spreadsheet for statistical purposes
    4. ensure that the matter is included as a 'cause of action' on Casetrack to provide back up statistics
  4. if the no box has been ticked:
    1. the matter is listed to a first court date

The prescribed welfare authority is advised via a central email address – decdfamiliescrisiscarereferrals@sa.gov.au with a cc to decdfamiliescourtsinterfaceteam@sa.gov.au.

The notification to the prescribed welfare authority includes:

  1. the Notice and Request for Information letter
  2. where the Notice refers to an affidavit a copy of the affidavit

The prescribed welfare authority will complete the request for information and return it to the chambers of the federal magistrate having control of the matter.

Chambers staff are to advise the judicial services team leader of any requests returned by the prescribed welfare authority. The returned requests are noted and the required information is added to the statistical spreadsheet.

Attachment D

Client Service Instructions

Title Procedures for Dealing with a Notice of  Risk (revised) – South Australia
Authority Federal Circuit Court of Australia
Background

On 7 June 2012 amendments to the Family Law Act 1975 made by Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 commence. These amendments aim to provide better protection for children and families at risk of violence and abuse.

The key changes:

  • broader definitions of 'abuse' and 'family violence' to better capture behaviour harmful to children;
  • stronger requirements for the reporting of, or of a risk of, family violence or abuse in relation to children;
  • requirement for the Courts to list the matter as soon as practicable and, as appropriate, within eight weeks;
  • enhancement of liaison between the Courts and child protection authorities so that each knows of what is being done in relation to children by the other;
  • stronger obligations of lawyers, family counsellors, family dispute resolution practitioners and family consultants in relation to children and families at risk; and
  • improved processes for state and territory child protection authorities to participate in family law proceedings where appropriate.

If a Notice is filed alleging child abuse or risk of child abuse, for family violence (or risk of family violence) that amounts to child abuse, the prescribed child welfare authority must be notified.

*Note: parties completing the Notice are advised that alleged family violence (or risk of family violence) amounting to the abuse of the child (or risk of abuse of a child) must set this out in answer to Question 2.

New Process

Client service officers must:

  1. Check to ensure the Notice of Risk is filed in all parenting applications.
  2. Check to see which box in questions 2(a) or 2(b) are ticked.
  3. If the yes box is ticked for questions 2(a) or 2(b):
    1. if the matter requires an urgent listing/abridgement, refer to the      matter to a registrar for listing and send a copy of the Notice of Risk to the prescribed welfare authority.
    2. if it does not require an urgent listing/abridgement list the matter within 8 weeks and send a copy of the Notice of Risk to the prescribed welfare authority.

The prescribed welfare authority is advised via a central email address:

decdfamiliescrisiscarereferrals@sa.gov.au with a cc to decdfamiliescourtsinterfaceteam@sa.gov.au.

The notification to the prescribed welfare authority includes the Notice and Request for Information Letter.

The prescribed welfare authority will complete the request for information and return it to the chambers of the judge having control of the matter.

Affidavits

The affidavit filed with a Notice will not ordinarily be forwarded to a prescribed child welfare authority with the Notice.  The Notice itself requires allegations to be particularised without reference to the Affidavit.