The Federal Circuit and Family Court of Australia have recently established a new Court list known as the Critical Incidents List.

The Critical Incidents List is dedicated to family law applications filed in circumstances where following criteria is met:

  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 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/ren to live with the Applicant); and
  4. There are no existing final family law state/territory child welfare orders in place which relate to the child/ren’s care arrangements with a non-parent or allocating parental responsibility to a non-parent.

The Court acknowledges the challenges that children and families in these circumstances and therefore the key objective of the critical incidents list is to facilitate faster access in circumstances where the above criteria is met.

In the recent case of Bellamy [2022], the first Applicant was the half-brother of the subject child aged 11 years old. The child’s mother died in mid-2013 and the child’s father died in late 2019. The child came into the Applicant’s care in October 2019.

The Applicants made an application under the Critical Incident List to secure orders for parental responsibility and for an order for the child to live with them permanently. The Applicants required the application be heard urgently so they could make appropriate arrangements for the child’s health and wellbeing particularly to engage with healthcare providers, schools, NDIS and apply for a Medicare card.

The Judge made interim Orders when the matter was first heard, including bringing the proceedings to the attention of the child’s wider family to ascertain if they supported the child remaining in the Applicants’ care and an Order for the Department of Communities and Justice to advise of their involvement with the child.  The extended family expressed their support for the child living with the Applicants and the Court ultimately made orders for the child to live with the applicants on a final basis and that parental responsibility be allocated the applicants, for all major long term decision related to the child.

A similar set of facts arose in the case of Dodson [2022] where the Applicants made an application for parental responsibly and for the child to live with them in circumstances where the child’s parents both passed away.  The first Applicant in the proceedings was the child’s maternal aunt and the second Applicant was the maternal aunts’ husband, and it was accepted by the Court that the mother’s will appointed the applicants as the child’s testamentary guardian.  Interim orders were made granting parental responsibility to allow the Applicants to access service providers for the child and orders where made on a final basis that the child live with the applicants and that the applicants have parental responsibility for the child.

Once the Application is filed under the Critical Incidents List, the application will be directed to the National Assessment Team who will consider the Application and if the criteria is met will:

  1. Allocate a first return date and time for the application before a Judge of the Critical Incidents List within 7 business days (subject to demand and availability);
  2. Make any necessary procedural orders.

If the application does not meet the necessary criteria of the Critical incidents list, the application will be referred to:

  1. The registrar on duty for listing;
  2. A direction hearing before a Judicial Registrar;
  3. The relevant docket, if application for hearing in the ordinary course.