Family violence is a plight on society. This is why the Federal Circuit & Family Court (FCFCOA) has been making headway into addressing family violence in its practice and processes. An example of this is the Lighthouse Project pilot initiative, aimed to assess risks in parenting cases so that appropriate resources and urgency are allocated to each case. Another recent example is the Critical Incident List, which commenced on 6 June 2022.
The Critical Incident List is a fast track list for parenting orders in circumstances where there is no parent available to care for a child/children due to death, critical injury or imprisonment due to family violence.
Criteria
In order to be considered for the Critical Incident List, the following criteria must be satisfied:
- The applicant is a non-parent caring for the child/children – it does not need to be family, it could be a family friend, godparent or other adult who has a vested interest in the care and wellbeing of the child/children;
- There is no parent available to care for the child/children as a result of death, critical injury or imprisonment relating to or resulting from a family violence incident;
- The applicant is seeking orders for parental responsibility to enable appropriate arrangements to be made for the child/children – for example, where they need to enrol the child/children in school, or engage with health care providers etc.;
- There is no existing final family law or state/territory child welfare orders in place which relate to the child/children’s care arrangements with a non-parent or allocating parental responsibility to a non-parent.
How to apply
To apply for the Critical Incident List, the applicant needs to file the usual parenting court documents, including an Initiating Application, Notice of Child Abuse, Family Violence or Risk and an Affidavit in support of the application. Unlike a “normal” parenting court application, applicants do not need to comply with pre-action procedures, nor do they need to file a Genuine Steps Certificate or Parenting Questionnaire.
It is very important for the applicant to provide sufficient detail in their affidavit about:
- The relevant circumstances of the case and how it meets the Critical Incident List criteria; and
- urgency / why the parenting orders sought need to be considered urgently.
It has been stressed by the Court that the Critical Incident List is not just a side-step to obtain a quick hearing/result. The circumstances of the case must meet the criteria and be urgent before it is assigned to the List.
It is recommended that a cover letter summarising the facts set out in the affidavit also be filed with the application. The applicant should consider whether they also seek to have the case heard ex-parte (without other relevant parties being present). This may be needed for example, where an urgent school enrolment is required. If an ex-parte hearing is sought, the application should note the parties that should be served with the application and the means by which they are to be served.
If the Court is satisfied that the matter should be assigned to the List, it will be allocated within 7 business days (and potentially sooner, if an ex-parte hearing is sought).
In the words of the Judge managing the List, “we would prefer there was no need for such a list” to manage such cases, “but this is a little bit that the Court can do to get relief for the surviving loved ones, and primarily for the children.” It is most certainly one of the most traumatic situations any child or loved one has to experience in life. It is therefore crucial that prudent, expert legal advice is obtained if one is ever faced with having to make such an application. If you are facing this type of situation, or any other parenting dispute, we have some of the best lawyers in Doncaster and the Eastern suburbs who can help you achieve the best outcome for the children involved. Contact one of our experienced family lawyers on 0421 397 316 or jlok@risefamilylawyers.com.au for an obligation free chat.
