The Family Court of Australia is often involved in some of the toughest situations a family can find themselves in. Where there is no parent available to care for children because of a death (including murder), critical injuries or imprisonment, the Court has a Critical Incident List for family law applications needing urgent attention.
The families and children in these situations face extraordinary challenges and the Court can make urgent Orders so as to enable carers who are not the parents to make appropriate arrangements for the children. This can include enrolling children at school and organising medical treatment.
In order to be considered for the List, the Applicant must be a non-parent caring for the children in circumstances where there is no parent available to do so as a result of one of the above issues. The Applicant will be seeking Orders for Parental Responsibility (decision making) so as to enable appropriate arrangements to be made for the children. The Court has set up a dedicated email address so that the appropriate application documents setting out the evidence can be filed with the Court. When litigants normally commence proceedings in the Court, they have to comply with pre-action procedures which include mediating and attempting to settle their dispute without Court. Applicants in the Critical Incidents List, however, do not need to comply with this because very often the applications are made in circumstances of urgency.
If the matter is received into the List, the assessment team within the Court will allocate a listing before a Judge within 7 business days if at all possible and will also make Orders to obtain documentation from other government organisations. The Critical Incident List only commenced in June 2022 and specialist judges have been appointed to manage the List.
A recent case dealt with in the List involved an 11 year old child who had lost his mother in 2013, and then his father in 2019. The child was taken into the care of the Department in Queensland when he was 8 years old when his father died. He has been living with his adult half-brother since that time, along with his brother’s wife. They applied to the Court for Orders allowing them to formally make medical and legal decisions for the child and to apply for a passport for him. Many matters that commence in Court in normal circumstances can take several years to be finalised but matters in the Critical Incident List can take a matter of months. In the case in Brisbane, no other family members objected to the child’s half-brother being appointed and Orders were made by the Court quickly that allowed the brother to care properly for the child.
An earlier case dealt with by the Court in Sydney in November 2022 dealt with a child who had just turned five. His mother had passed away in early 2022 and his father in mid-2022. His mother had appointed the Applicants (her sister and parents) to be the guardians for the child in her Will. Those people applied to the Court and, again, no one objected to their appointment. The Department of Communities and Justice was also involved in the proceedings and consented the Applicants being appointed to care for the little boy. The Court was particularly impressed that the Applicants continued to keep the child’s paternal family involved in his life. The child was attending pre-school at the time but needed to be enrolled in kindergarten the following year so the Orders from the Court will allow the Applicants to do this.
The Critical Incident List is a fast tracked process to help families in the most dire of situations to make arrangements for children when no parent is available to care for them. If you or your family members find yourselves in this unimaginable situation, please let us know if we can help.