Your Guide to the New Critical Incident List in Family Law

What do we know about the FederalCircuit and Family Court’s new Critical Incident List?

As a result of death, critical injury or incarceration relating to family violence, children may find themselves in the care of someone other than their parents. As the ability to make decisions falls with a child’s parent, practical and logistical barriers frequently inhibit a non-parent carer’s ability to make decisions for a child, including enrolling in education or consenting to medical assistance.

The Chief Justice of the Federal Circuit and Family Court of Australia, the Hon Will Alstergren said:

“Family violence is a national disgrace, and far too often, results in the death of a parent at the hands of their partner or former partner. Australia has witnessed too many situations in which children are left without the care of their biological or legal parent following the murder of one parent and the death or incarceration of the other.

“It is an extraordinarily tragic and stressful time for the children involved, and the extended family members who are suddenly left to pick up the pieces and care for the children and make arrangements for their health and education.”

Previously, a non-parent carer has been able to file an application with the court, however was rarely prioritised unless circumstances of urgency were made out. This resulted in an inability for a non-parent carer to make prompt decisions regarding the child, which can further traumatise a child in an already extremely emotionally damaging experience.

As a result of these difficulties, the Federal Circuit and Family Court of Australia has established a fast-tracked process, known as the Critical Incident List, which will help families make appropriate arrangements for children where no parent is available to care for the child as a result of death, critical injury or incarceration relating to family violence. The Critical Incident List commenced on 6 June 2022, aiming to limit the immeasurable impact on children and focus on the welfare of the children.

The Federal Circuit and Family Court of Australia can make orders about where children live, as well as orders for parental responsibility, allowing non-parent carers to make fundamental decisions regarding appropriate arrangements for children, including education and medical assistance.

To be considered for the Critical Incident List, the following criteria must be satisfied:

1. The applicant is a non-parent caring for the child or children;
2. There is no parent available to care for the child or children as a result of death (including homicide), critical injury or incarceration relating to or resulting from a family violence incident;
3. The applicant is seeking orders for parental responsibility to enable appropriate arrangements to be made for the child or children (for example, authorities to engage with schools and health care providers, and this may or may not include an order for the child or children to live with the applicant); and
4. There are no existing final family law or state/territory child welfare orders in place which relate to the child or children’s care arrangements with a non-parent or allocating parental responsibility of the child/children to a non-parent.