Family Law Practice Direction – National COVID-19 List

(FAM-COVID)

1. Introduction

1.1 This Practice Direction applies to urgent or priority family law applications filed in the Federal Circuit and Family Court of Australia (the Court) which are filed as a direct result of, or in significant connection to, coronavirus (COVID-19).

1.2 This Practice Direction expands the fast-tracked list in the Court (the National COVID-19 List) which swiftly deals with urgent or priority applications related to COVID-19 on a national basis.

1.3 It is to be read together with:

  1. the Family Law Act 1975 (Cth) (Family Law Act);
  2. the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules); and
  3. FCFCOA Practice Direction – COVID-19 Special Measures.

1.4 This Practice Direction applies to all proceedings commenced on or after 1 September 2021. This Practice Direction will also apply to all proceedings commenced prior to 1 September 2021, unless unfair or impractical to do so.

1.5 This Practice Direction revokes and replaces Joint Practice Direction 1 of 2021: The COVID-19 List.

1.6 The National COVID-19 List has been expanded as and from 20 January 2021. Examples of applications which may be eligible for the expanded National COVID-19 List are outlined below.

2. Criteria for National COVID-19 List

2.1 In order to be considered for the National COVID-19 List, the application must satisfy the following criteria:

  1. the application has been filed as a direct result of, or in significant connection to, the COVID-19 pandemic;
  2. the matter is urgent or of a priority nature;
  3. the application is accompanied by an affidavit (using the COVID-19 template) that addresses the criteria set out in paragraph 4.4 below;
  4. reasonable attempts have been made to resolve the issue where safe to do so, but were unsuccessful; and
  5. the matter is capable of being dealt with by electronic means.

3. Operation of the National COVID-19 List

3.1 The National COVID-19 List is an initiative of the Chief Justice/Chief Judge, and is at all times managed and overseen by the Chief Justice/Chief Judge.

3.2 The National COVID-19 List is administered by the National COVID-19 List Judicial Registrars (COVID-19 Judicial Registrars). The COVID-19 Judicial Registrars will consider the urgency or other priority of the applications filed and, if the criteria are met, triage them to Judges or Senior Judicial Registrars who have been assigned to the National COVID-19 List.

3.3 In triaging an application, the COVID-19 Judicial Registrars will consider whether the matter is suitable for an urgent electronic mediation or conciliation and may make orders to facilitate this.

3.4 Applications that meet the COVID-19 criteria will be given a first return date before a COVID-19 Judicial Registrar, Senior Judicial Registrar or Judge:

  1. if assessed as urgent by the COVID-19 Judicial Registrar, within 3 business days of being considered, or
  2. otherwise, within 7 business days.

3.5 If the application does not meet the relevant criteria for inclusion in the National COVID-19 List, it will be referred to:

  1. the Judicial Registrar or Deputy Registrar on duty for listing;
  2. a directions hearing before a Judicial Registrar, or
  3. referred to the relevant docket Judge, if applicable, for hearing in the ordinary course.

3.6 Judges and/or Senior Judicial Registrars will hear matters in the National COVID-19 List on a national basis, as allocated by the Chief Justice/Chief Judge and subject to demand and available judicial resources.

3.7 Where a proceeding involves significant risk to the parties and/or the children, it will be referred directly to a Judge by the COVID-19 Judicial Registrar.

3.8 If the application is part of an existing proceeding, the Judge managing the matter will be consulted in the listing process and invited to mention the application within the required time period, where possible.

3.9 The National COVID-19 List will operate electronically, meaning that the proceeding may be heard by a Judge or Senior Judicial Registrar from any registry in the Court.

3.10 If a matter is listed for an urgent hearing before a Judge or Senior Judicial Registrar via the National COVID-19 List, that Judge or Senior Judicial Registrar will only hear the discrete COVID-19 related issue, or make orders for interim arrangements to deal with the circumstances of urgency. Once that issue is dealt with, the remainder of the matter will be case managed by the docket Judge or a Judicial Registrar as appropriate.

4. Filing an application in the National COVID-19 List

4.1 An application is commenced in the COVID-19 List by filing the documents listed at paragraph 4.2 below via email to COVID19List@fcfcoa.gov.au.

4.2 The following documents must be filed with an application for consideration in the National COVID-19 List:

  1. for an application for parenting orders:
    1. an Initiating Application (Family Law) if there are no family law proceedings on foot, or an Application in a Proceeding, if there are current proceedings on foot (Application);
    2. an affidavit in support of the application of no more than 6 pages using the COVID-19 template;
    3. a cover letter for urgency – see Annexure A;
    4. a Parenting Questionnaire; and
    5. a Notice of child abuse, family violence or risk; and
  2. for an application for financial orders:
    1. an Application;
    2. an affidavit in support of the application of no more than 6 pages using the COVID-19 template;
    3. a cover letter for urgency – see Annexure A;
    4. a Financial Questionnaire; and
    5. a Financial Statement.

4.3 In accordance with FCFCOA Practice Direction – COVID-19 Special Measures, the Application and affidavit may be signed electronically. The affidavit may be filed without a qualified witness also signing the document.

4.4 The affidavit in support of the Application must address the following criteria:

  1. why the matter is urgent or a priority;
  2. how the dispute is directly related, or has a significant connection, to COVID-19;
  3. details of any current allegations of risk to children or parties, such as a risk of child abuse or family violence;
  4. details of the parties’ reasonable attempts to resolve the dispute through Dispute Resolution or negotiation, or details explaining why it was not safe to do so; and
  5. details of how the applicant proposes to serve the documents on the respondent, including the respondent’s current email address and telephone number, including for any legal representative;
  6. whether the applicant seeks an order that the respondent be served by email, and if so, evidence confirming that the respondent has recently used that email address (for example, annexing to the affidavit an email recently received from that email address); and (g) if applicable, attaching a copy or photograph of any current family law orders, parenting plans or family violence orders (for example, an intervention order or domestic violence order), together with details of any charges or convictions resulting from breaches of those family violence orders.

4.5 Unless it is not safe to do so, the applicant must put the respondent on notice of the application, by copying the respondent into the email when they file their documents with the Court.

4.6 The COVID-19 Judicial Registrar may require the respondent to file responding material on short notice. If the Judicial Registrar or Judge requires further material to be filed to be able to deal with the COVID-19 related issue, parties will be informed of this at the first return date.

5. Applications that may be suitable for filing in the National COVID-19 List

5.1 Applications to be accepted into the expanded National COVID-19 List are at the discretion of the COVID-19 Judicial Registrar or Judge assessing the application.

5.2 However, for guidance, the following are examples of applications that may be considered suitable, subject to the specifics of each case, for consideration in the National COVID-19 List:

  1. Family violence: There has been an escalation or increase in risk due to family violence associated with the COVID-19 pandemic. Examples include (but are not limited to) a breach of a family violence order, a party being charged with a family violence related offences or recent child welfare agency involvement with the family related to family violence concerns.
  2. Suspension of parenting orders due to a family violence order: where either parenting orders or a parenting plan have been suspended by an ex parte family violence order made during the COVID-19 pandemic and a party seeks that the Court make further parenting orders.
  3. Vaccinations: at the relevant time, there is a dispute about a child being vaccinated against COVID-19.
  4. Medical: The parties cannot fulfil the parenting obligations due to a party and/or child testing positive for COVID-19 or medical complications from having contracted COVID-19, or due to concerns about infection or quarantine requirements.
  5. Travel arrangements or border restrictions: the parties live in different States or Territories and there are difficulties or anticipated difficulties with the child travelling between the parties’ residences, including due to any Government restrictions, or a party is planning international travel.
  6. Supervised contact: the current parenting arrangements involve supervised contact, and the contact centre is closed or the supervisor is unable to perform their role, and the parties cannot agree on an alternative arrangement.
  7. Urgent or priority financial and maintenance issues: a party is experiencing financial distress related to the impact of COVID-19 and requires urgent court orders; for example, an application for occupation or sale of a property.
  8. Failure to resume time in accordance with parenting orders or a parenting plan: where parties agreed to suspend parenting orders or a parenting plan due to COVID-19 restrictions, but there has been a failure or refusal to resume compliance with those parenting orders or that parenting plan following the easing of COVID-19 related restrictions.
  9. COVID-19 related employment: a party is a front line health worker or engaged in other employment connected with COVID-19 that is impacting parenting arrangements or compliance with orders.

6. Further information

6.1 For further information about the National COVID-19 List, parties should refer to the Court’s website at www.fcfcoa.gov.au.

 

The Honourable Justice William Alstergren
Chief Justice (Division 1) | Chief Judge (Division 2)
Federal Circuit and Family Court of Australia
Re-issued: 1 September 2021

 

Annexure A: Template COVID-19 cover letter for urgency

Dear Judicial Registrar

Re: Urgent COVID-19 Application [include existing file number and matter name, if applicable]

I/we request that this Application is given an urgent listing and allocated to the National COVID-19 List.

I/my client seek/s that the matter be filed in the [insert location] registry of the Federal Circuit and Family Court of Australia.

I/we enclose the following required documents:

  1. Application;
  2. Affidavit of [insert name] [using the COVID-19 template affidavit];
  3. [If seeking parenting orders], a Notice of child abuse, family violence or risk;
  4. [If seeking parenting orders], a Parenting Questionnaire;
  5. [If seeking financial orders], a Financial Questionnaire; and
  6. [If seeking financial orders], a Financial Statement.

In filing this application, the affidavit addresses the required criteria:

  1. why the matter is urgent or of a priority nature;
  2. how the dispute has arisen as a direct result of, or is significantly connected to, COVID-19;
  3. details of any current allegations of risk to children or parties, such as a risk of child abuse or family violence;
  4. details of the parties’ reasonable attempts to resolve the dispute through Dispute Resolution, or details explaining why it was not safe to do so;
  5. details of how it is proposed to serve the documents on the respondent today, including information about the respondent’s current email address, telephone number and their legal representative (if any);
  6. [if service by email is sought] evidence that the respondent has recently used their email address; and
  7. where applicable, attaches a copy or photo of any current family violence order.

Regards,