Kristen Mitchell-Scott, Solicitor at Mitchells Solicitors, outlines how the new COVID-19 List, effective from 29 April 2020, will work in practice. She details the criteria that Applications to be dealt with through the COVID-19 List, and the supporting affidavit, must satisfy.
Following an apparent increase in urgent filings for Parenting Matters, since the beginning of the COVID-19 pandemic, Chief Justice Will Alstergren of the Federal Circuit Court and Family Court announced there would be a new COVID-19 List, effective from 29 April 2020. Joint Practice Direction 3 of 2020 – “The COVID-19 List” outlines how the COVID-19 List will work in practice.
The List will allow relevant matters to receive urgent attention. Chief Justice Alstergren, in his Media Release, said “Applications that are eligible to be dealt with through the COVID-19 List, especially those involving issues of risk and family violence, will receive immediate attention and will be triaged by a dedicated Registrar who will assess the needs of the case and allocate it to be heard by a judge within 72 hours of being assessed.” Currently, all hearings are being conducted telephonically or via videoconferencing, with leave from the Court required to attend in person.
According to the Joint Practice Direction, the Application must meet the following requirements:
- The application has been filed as a direct result of the COVID-19 pandemic;
- The matter is urgent;
- The application is accompanied by an Affidavit (using the appropriate template which has been developed) that address the criteria (described below);
- If safe to do so, reasonable attempts have been made to resolve the issue, but were unsuccessful; and
- The matter is capable of being dealt with by electronic means.
The specific criteria to be addressed in the Supporting Affidavit are:
- The urgency of the matter;
- How COVID-19 has caused the dispute to arise;
- Clear information and descriptions of any current risks to the parties or their children i.e., domestic/family violence and/or child abuse;
- Any reasonable attempts made by the parties to manage and resolve the particular dispute by way of negotiation, or a discussion of why it is unsafe to attempt resolution through negotiation;
- Details of how the Respondent would be served with the Court Documents, including the Respondent’s email address; and
- If relevant, attaching or annexing any current Court Orders (either Family Law or Domestic Violence) and/or Parenting Plans.
The Application must also include a Cover Letter for Urgency (along the lines provided with the Joint Practice Direction) and the standard documents filed with an Application for Parenting Orders.
All documents may be electronically signed without the need for a witness and must then be filed with the Court via email.
The Applicant (or their Solicitor) is required to copy the Respondent in on the email to the Court, unless it is unsafe.
The Registrar responsible for assessing the matter, may request the Respondent file their Response Material at short notice, only on the relevant urgent issue. If further information is required, the particular Judge or Registrar hearing the matter will communicate that on the first return date.
Such matters which may be suitable to be heard under the COVID-19 List are:
- Border Restrictions: where the parties reside in different States or Territories, meaning the Child is unable to travel between the parties homes due to the lockdown;
- Family Violence: as the lockdown means families are spending more time at home together, there is an increased risk of domestic/family violence occurring;
- Medical Needs: the parties and/or the Child have tested positive for COVID-19 and cannot therefore meet their normal parenting obligations; and
- Supervised Contact: COVID-19 has caused Contact Centres to close down, though some are slowly reopening. Accordingly supervisors may be unable to perform their roles and parties may not be able to agree on alternatives.
If you think your situation may be able to be heard under the COVID-19 List and you would like to speak with a lawyer, please contact Kristen Mitchell-Scott of Mitchells Solicitors
Kristen Mitchell-Scott holds dual degrees in Bachelor of Laws (Honours) and Bachelor of Arts, majoring in Japanese and Criminology from the University of Queensland, and a Graduate Diploma in Legal Practice from the College of Law. She will commence her Master of Applied Law (Family Law) at the College of Law in 2020. Contact Kristen via email, phone (07) 3373 3633 or LinkedIn