By James Marmin
In our third year of dealing with COVID-19, the pandemic continues to impact separated families. We have seen disputes arise with respect to vaccinations of children, interstate travel, overseas travel and general compliance with Orders of the Court. To assist in dealing with discrete issues arising from COVID-19, the Federal Circuit and Family Court of Australia (“FCFCOA”) introduced the COVID-19 List.
Eligibility Criteria
In order for a matter to be eligible for the COVID -19 List, the following criteria must be satisfied:
The application must be filed as a direct result of, or if indirect, has a significant connection to, the COVID – 19 pandemic;
The matter must be urgent or of a priority nature;
The application must be accompanied by an Affidavit that addresses the above criteria;
As long as it is safe to do so, a party must have made reasonable attempts to resolve the issue; and
The matter must be able to be dealt with using electronic means (ie telephone or video link).
What matters directly relate to COVID-19?
The FCFCOA has produced a list of what matters may directly relate to COVID-19. The examples are as follows:
- Family Violence: For example, a breach of a Family Violence order, a party being charged with family violence related offences or family violence concerns.
- Suspension of parenting orders due to a family violence order: Where parenting orders or a parenting plan has been suspended by an ex parte family violence order during COVID -19.
- Vaccinations: At the relevant time, there is a dispute about a child being vaccinated against COVID-19.
- Medical: The parties cannot fulfil the parenting obligations due to a party or child testing positive to COVID-19 or medical complications from contracting COVID-19.
- Travel arrangements or border restrictions: If there are any issues with parties living in different states and there are concerns with the child traveling between the residences.
- Supervised contact: If the contact centre is closed or the supervisor is unable to perform their role due to COVID-19.
- Urgent or priority financial maintenance issues: If a party is experiencing financial distress related to the impact of COVID-19 and requires urgent Court orders.
- Failure to resume time in accordance with parenting orders or a parenting plan: Where parties agreed to suspend parenting orders due to COVID-19 but there has been a failure or refusal to resume compliance.
- COVID -19 related employment: If a party is a front-line health worker that is impacting parenting arrangements or compliance with orders.
How do I apply?
To apply to the Court to have your matter referred to the COVID-19 List you must complete file the following documents:
A supporting affidavit of no more than six pages using the COVID-19 template affidavit;
A cover letter advising the Court that the matter is urgent; and
A Notice of child abuse, family violence or risk.
In the supporting affidavit, the Applicant should address the following criteria:
- Why the matter is urgent;
- How the dispute is connected to COVID-19;
- Details of any current allegations of risk to the children or the parties;
- Details of any attempts the parties have taken to resolve the dispute;
- Details of how the other party can be provided with the Court documents;
- Annexing any current family law orders, parenting plans or family violence orders.
What happens after I file?
Once you have filed your application, a COVID-19 Judicial Registrar will consider the urgency of your matter and determine whether it satisfies the COVID-19 List criteria. In circumstances where each criterion is met, your application will then be triaged to a Judge or Senior Judicial Registrar assigned to the COVID-19 List.
MDL can help
If you believe your matter may be eligible for the COVID-19 List, our Family Law team can assist in advising on the likely eligibility of your matter. Additionally, our team can assist you with drafting and filing the required documents in order to provide you with the best prospects of success in having your matter added to the COVID-19 List.