Family law often deals with families in a state of crisis, since many parental relationship breakdowns are experienced as traumatic and distressing for the whole family. But what happens when a child is in crisis due to the abrupt loss of their primary parent through murder or suicide, or through the parent being jailed due to family violence offences? In those cases, it’s vital that the making of new arrangements for the child’s care happens very quickly, rather than a matter dragging through the court system for years. It’s with this in mind that the Federal Circuit and Family Court of Australia (FCFCOA) has established a new way to fast-track the court process when children are left with no parent to care for them, to enable other carers to sort out arrangements for the child.
Beginning in June, the FCFCOA will now have a dedicated Critical Incident List (for all states and territories except Western Australia). The List will be managed by Justice Jacoba Brasch, dedicated specialist Division 1 judge of the FCFCOA. Matters accepted into the Critical Incident List are allocated a first listing date within 7 business days (subject to the demand and availability of judicial resources).
When a child loses their parent, a court order is typically needed to establish where a child will live and confer parental responsibility to non-parent carers so that they can make necessary arrangements for the kids, such as enrolling them in schools or arranging and consenting to medical treatment. Rather than be subject to the lengthy delays of the court system, the List will enable families and non-parent carers to make arrangements quickly in situations where the child has no parent available due to the parent’s death (through homicide or suicide), critical injury or their incarceration for family violence offences.
The List is specifically designed to deal with the aftermath of family violence, where the death or critical injury of a parent has occurred at the hands of the parent’s partner or former partner. In those circumstances, it is the children who are helplessly left behind and are in dire need of urgent support.
Chief Justice of the FCFCOA, 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.”
The List was established in consultation with the Queensland Homicide Victims Support Group who provide support to victims of crime. Mr Brett Thompson, QHVSG Chief Executive Officer, said that the establishment of the Critical Incident List “displays an understanding from the victim’s perspective. It is a progressive and trauma informed process, which will assist in establishing genuine support and greater certainty for children, in the most abhorrent of circumstances”.
What normally happens when a custodial parent dies?
If there is a parenting order in place that requires that a child under 18 lives with one parent and that parent passes away, unless the parenting order states what is to happen in the event of the parent’s death, the surviving parent isn’t automatically entitled to take the child to live with them.
Usually, the scenario is that the surviving parent will want the child to live with them. This may, however, not always be in the child’s best interests. There may also be other individuals, such as a step-parent or a grandparent, who have been far more involved with the child and express an interest in the care, welfare and development of the child. There may also be cases where the child would be at risk in the surviving parent’s care. In such cases another non-parent may well wish to have the child live with them.
Sometimes, all relevant parties can come to an agreement over the child’s living arrangements without the intervention of the family courts.
But where there is a disagreement, the surviving parent or other relevant individual can apply to the family courts to determine with whom the child should live and who should have parental responsibility going forward.
Find out more detail about the Critical Incident List here.
If you are a non-parent carer and would like family law advice in relation to the Critical Incident List or any other parenting application in the FCFCOA, please call Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.