The Family Court of Australia has experienced a 39% increase in urgent applications since COVID-19.
It is well documented that the Court is already stretched in terms of its resources however yesterday the Chief Justice, in his new practice direction, detailed that there is now in effect what is called ‘The COVID-19 List’ for family law matters that are urgent and directly linked to the pandemic.
It will mean that where there are serious concerns about children’s safety or where parents are being denied time with their children, family violence or the breakdown of the children’s arrangements , all arising out of the pandemic, they will be able to get in front of a judicial officer quickly and have the matter dealt with.
What this new direction will mean, as the Chief Justice has said, is that he will be able to call on a judge that has availability, for example a Judge who is based in Cairns, and allocate them a matter that needs attention in Canberra. This is an excellent response to this sharp increase in applications.
This new direction has certain criteria. Firstly, there must be an obvious link to the issue having arisen as a direct result of the pandemic. Secondly, there must be urgency. Examples of urgency are that somebody is at risk, children have not been returned to who they should be living with, or there are major disputes about whether the children should or should not be going to school. Other urgent matters include border restrictions or medical related issues.
Other instances that can be considered urgent include where the current parenting arrangements involve supervised contact and the contact centre is closed or the supervisor is unable to be present. Further examples can be found on the Federal Circuit Court National COVID-19 List page.
These issues are not only for long term separated or divorced parents. We are currently seeing clients, some of whom were in intact relationships prior to this pandemic who find themselves in these significant disputes about matters such as children going to school.
How to apply for the COVID-19 List
To apply for this fast-tracked process and be put on the list, the application must be accompanied by an affidavit. An affidavit is evidence to support the application and must demonstrate that the parties involved have attempted to resolve this issue but have not been successful.
Most parenting matters are filed in the Federal Circuit Court. Usually only very complex matters are filed in the Family Court such as where there are very serious allegations of sexual abuse of children, where there are multiple parties involved or there has been previous intervention of a state authority such as the Department of Community Services.
How to maximise your chances of your matter being fast-tracked
While people can apply for this list and use the affidavit template available on the sites above, it is important to sufficiently fulfil the criteria to be considered for this list. If the registrar determines that your application has satisfied the criteria then your matter will be allocated to a Judge. If not, your matter is put aside for more urgent matters.
Seeking the assistance of a family lawyer who specialises in parenting matters, to properly put the evidence before the Court and satisfy the criteria so it can proceed to the registrar who assesses it, is key.
Your application and affidavit must meet the criteria to convince the Court that either new orders be made or current orders need to be changed or enforced.
The flip side of this is that you might be defending one of these cases and you might actually want to put your position before the Court about why the matter ought not be dealt with urgently or that your evidence about what is happening in the family is properly put before the Court so that children are not disadvantaged.
What will Court look like if your matter gets on The COVID-19 List?
When you go in front of the court, the lawyer appearing for you puts your case to the Judge, we explain your case to the judge and make representations on your behalf about why your application is urgent and why whatever orders you are seeking should be made at that point in time. In most cases, lawyers will do those orally. In some cases, some judges insist on written submissions, but in an urgent context, a lawyer would be there making representations to the Judge about why your request to the Court should happen.
The process can be intimidating and stressful.
For our team who are regularly before Judges in the Court, we have much familiarity and comfort in this context. We are experienced family law advocates..
While The COVID-19 List is a fantastic response, what will be pivotal for people applying is whether their application is put together in a way that means it has a chance at being successful. And if it is, the success of the subsequent Court hearing is the next hurdle. The support of a specialist family lawyer might be the difference between being successful or not. Further, it could well be a very important juncture in any existing matters that are already before the Court, or even if this is the first time before the Court, depending on what the particular circumstances of the problem are at that time.
At the end of the day, if your safety and your children’s safety is of concern, then you absolutely want to get the best outcome that you can. These types of matters are what we work with every day and we understand the court’s processes and the landscape of family law .
DDCS Lawyers specialise in all aspects of family law including domestic violence and parenting matters. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.