Notice of risk

Notice of risk

Proctor & Proctor [2016] FCCA 613 (23 March 2016)

The following is annotated. For full case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2016/613.html?stem=0&synonyms=0&query=family%20law%20act

Notice of risk

34. It is noteworthy that neither party has filed a Notice of Risk.
35. The Application and Response of each party was filed prior to 11 January 2015 when Division 22A of the Federal Circuit Court Rules 2001 came into effect and so as to require that a Notice of Risk be filed with any Application or Response seeking parenting Orders.
36. The 2006 amendments to the  Family Law Act 1975 ^[15] introduced section 60K (now section 67ZBB). Section 67ZBB of the Act requires that in any case in which allegations of abuse or family violence are raised or in which a risk of family violence or abuse is alleged, the Court must:
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    (a) consider what interim or procedural orders (if any) should be made:

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    (i) to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and

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(ii) to protect the child or any of the parties to the proceedings; and

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(b) make such orders of that kind as the court considers appropriate; and

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(c) deal with the issues raised by the allegation as expeditiously as possible…

37. To trigger these obligations parties are obliged to file a “prescribed notice” particularising any allegation of abuse (section 67Z of the Act) or family violence (section 67ZBA of the Act).
38. The Notice of Risk is important for three reasons, being:
    1. To aid the Court’s role in case management;
    2. To notify State child welfare Authorities of allegations within their statutory area of responsibility and, if necessary, trigger investigation and/or intervention; and
    100. To trigger and inform the Court’s obligations pursuant to section 67ZBB of the Act and allow the Court to take prompt action to:
         1. Gather or commission evidence (such as issuing requests for information to other agencies, making section 69ZW Orders to obtain records from Police and State Welfare Agencies, appointing an Independent Children’s Lawyer or engaging a Family Consultant to prepare a Report);
         2. Manage and address the dispute (such as engaging Family Consultancy Services and/or assessing suitability of Family Dispute Resolution or Family Counselling,^[16] consider transfer of the proceedings^[17] or granting expedition);
         3. Make Orders for the protection of a child or party (this might include substantive parenting Orders and a consideration of supervision, personal protection Orders pursuant tosection 68B of the Act or otherwise).
39. These duties and responsibilities are serious and intended to ensure that all necessary issues are identified, all necessary information obtained and protection consistently provided to victims of violence and their children across all jurisdictions State, Territory and Federal.
40. It is inexcusable that a statutory mandate to notify the Court of issues of risk to children in the nature of family violence or abuse has been ignored by both parties. That is all the more so in light of the centrality of those issues to this case and to the welfare of these children.
41. The parties have a history of their relationship causing or requiring involvement with the Department of Family and Community Services commencing no later than 2008 and with the Police commencing in 1998, some 18 years ago.
42. For the entirety of the lives of these children there has been involvement with the Police regarding events within the children’s home and yet neither party saw fit to comply with the statutory obligations created by sections 67Z and 67ZBA of the Act, obligations to file a Notice of Risk and alert the Court, in the appropriate way, to those concerns.
43. If nothing else this case is a testament to the necessity and desirability of the rule change introduced by the Federal Circuit Court of Australia requiring that every party file a Notice of Risk. It is regrettable that rules of Court and, perhaps more so, practical impediments to filing^[18] are the only means by which it has been possible to ensure compliance with a mandated^[19] statutory obligation,^[20] including when parties are legally represented and, as officers of the Court, those attorneys have an obligation to ensure their client’s compliance.^[21]