Filing a Notice of Risk in all Parenting Matters01-08-2016 | Resource
In January 2015, the Federal Circuit Court introduced the requirement that all Initiating Applications and Responses to Initiating Applications seeking parenting orders be filed with a Notice of Risk form. This requirement applies to all of the above filed on or after 12 January 2015. From this time, no Applications or Responses will be accepted by the Court without the Notice of Risk.
One of the reasons this Form has been introduced is because there is a concern of possible under reporting of risk in family law matters. The purpose of the Notice of Risk form is to provide the Court with information about a wider range of risks to the children involved in parenting proceedings. By filing the Notice of Risk form, the Court can more easily identify matters in which allegations of risk are made and address these more promptly. In the Federal Circuit Court, the form replaces Form 4 – Notice of Child Abuse, Family Violence or Risk of Family Violence (this form remains in use in the Family Court).
The form can be submitted by parties to the matter, or by interested parties, such as the Independent Children's Lawyer (if there is one) or grandparents.
It is important to remember that any allegations made in this form must be supported by evidence either in an affidavit accompanying this form, or in the affidavit filed with the Application or the Response.
The form asks whether a child to whom the proceedings relate has been abused or is at risk of being abused. The Family Law Act 1975 includes in the definition of abuse:
- Assault and sexual assault;
- Sexual activity with the child or using the child as a sexual object where there is an unequal power of relationship between the child and the person;
- Causing psychological harm, including harm caused by being the subject of or being exposed to family violence;
- Serious neglect.
The form also asks whether there has been or if there is a risk of family violence by a party to the proceedings or any relevant person to the proceedings. The Family Law Act 1975 includes a definition of Family Violence as follows:
- Violent and threatening behavior such as assault, sexual assault or sexually abusive behavior between family members;
- Behaviour causing a family member to be fearful, such as stalking or continuous derogatory taunting, intentionally damaging or destroying property and intentionally injuring or killing an animal;
- Behaviour which is coercive and controlling toward a family member, such as preventing a family member from keeping in contact with their family and friends or culture, withholding financial support from a family member who is entirely or predominantly reliant on that persons financial support for their living expenses and depriving a family member of their liberty.
The Family Law Act 1975 also provides that a child is exposed to family violence where:
- The child hears, sees or experiences anything within the above definition of family violence;
- Where the child comforts or aids a family member who has been assaulted by another family member;
- Where the child is present where police or ambulance officers are required as a result of family violence;
- Where the child has to clean up after any intentionally caused property damage by a family member.
Once this Form is filed with the Court, the Court will arrange for a copy of the Form to be sent to the NSW Department of Family and Community Services (or relevant Department in your state) so that the Department can undertake any necessary investigations into allegations raised in the Form.
For more advice on how these issues may impact on your parenting arrangements following separation or to discuss the most suitable option in your case, contact one of our experienced family lawyers on (02) 4731 5688.