The critical incident list for families in crisis

When tragic circumstances arise and children are left without a parent to care for them, what happens next?

The Critical Incident List in the Federal Circuit and Family Court of Australia is a, fast-tracked process which has been specifically designed to hear urgent family law applications in times of crisis.

What is it for?

The Critical Incident List can be used in circumstances where no parent is available to care for a child, due to:

• death or terminal illness;
• critical injury; or
• incarceration relating to a family violence incident.

An application can be made if these circumstances apply and orders are sought for parental responsibility to enable arrangements to be made for the child or children.

Who can apply?

A non-parent, such as a grandparent, relative or close family friend who is caring for the child can apply to the Federal Circuit and Family Court of Australia for orders to be made about decisions and living arrangements for the child, such as:

• school enrolment;
• medical treatment; or
• day-to-day care arrangements.

Criteria for inclusion

For an application to be considered for the Critical Incident List, the following criteria must be satisfied:

• the applicant is a non-parent caring for the child;
• no parent is available to provide care due to death, injury or incarceration for family violence offences or will not be available due to terminal illness;
• the applicant seeks urgent orders for parental responsibility, such as to make decisions about major long-term issues and arrange appropriate care arrangements; and
• there are no existing final family law or child welfare orders which allocate parental responsibility or provide for the child to live with a non-parent.

If the criteria are met, the matter is usually listed before the court within 7 business days, allowing urgent decisions to be made for the child.

Why was the list needed?

The Critical Incident List commenced on 6 June 2022. It was established following consultation with Queensland Homicide Victims' Support Group and is part of the national reform to address the family violence crisis in Australia.

Sadly, family violence can lead to tragic outcomes where children are left without a parent to care for them. The list was designed to shift the focus from the right to support children in the most tragic of circumstances to instead focus on the welfare of these children.

Cases that have utilised the Critical Incident List include:

• Engberg [2024] FedCFamC1F 871 - where the mother passed away and the child was conceived by a sperm donor unknown to the maternal grandparents. The maternal grandparents obtained an order that the child live with them and parental responsibility be allocated to them for all major long-term decisions in relation to the child.
• Haillet & Ghalayini [2023] FedCFamC1F 509 - where the mother passed away and the father was incarcerated and had been charged with numerous domestic violence-related offences against the mother. Both the maternal family and paternal family sought parental responsibility and for the child to live with them. Orders were ultimately made for the child to reside with the maternal grandparents and the court found the maternal family was attuned to the needs of the child and the memory of the mother was more likely to be protected and promoted in their household.

While such cases are rare, they involve complexities and sensitivities that require experienced legal representatives. Our Family & Relationship Law team has extensive experience supporting and advising clients through complex parenting matters and are committed to assisting families navigate the family law system in a supported and compassionate manner.

If you require any assistance in relation to parenting matters, including any urgent assistance, please do not hesitate to contact our experienced Family and Relationship Law team.