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

  2. This Joint Practice Direction expands the fast-tracked, national list in each Court (“the COVID-19 List”) to allow the Courts to swiftly deal with urgent or priority applications related to COVID-19 on a national basis.

  3. This Joint Practice Direction revokes Joint Practice Direction 3: JPD3 of 2020 – The COVID-19 List.

  4. This Joint Practice Direction takes effect from the date it is issued and remains in effect until and unless superseded or revoked. Given the COVID-19 situation is still evolving, amended versions may be issued.

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

Criteria for COVID-19 list

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

    1. the application has been filed as direct result of, or if indirect, has a 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 affidavit for the FCoA or FCC) that addresses the criteria set out in paragraph 15 below;
    4. if safe to do so, reasonable attempts have been made to resolve the issue, but were unsuccessful; and
    5. the matter is capable of being dealt with by electronic means.

Operation of the COVID-19 List

  1. The 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.

  2. The COVID-19 List will operate in each Court and be administered by the National COVID-19 List Registrars. The National Registrars will, under arrangements set in place by the Chief Justice, consider the urgency or other priority of the applications filed and, if the criteria are met, triage them to Judges or Senior Registrars in each Court who have been assigned to the COVID-19 List.

  3. In triaging an application, the National Registrar will consider whether the matter is suitable for an urgent electronic mediation or conciliation and may make orders to facilitate this.

  4. Applications that meet the COVID-19 criteria will be given a first return date before a National Registrar, Senior Registrar or a Judge within 3 business days of being considered by the National Registrar if assessed as urgent, or otherwise within 7 business days if priority but not urgent.

  5. If the application does not meet the relevant criteria for inclusion in the COVID-19 List, it will be referred to the duty Registrar for listing, listed into a duty list or referred to the relevant docket Judge, if applicable, for hearing in the ordinary course.

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

  7. If a matter involves significant risk to the parties and/or the children, it will be referred directly to a Judge by the National Registrar.

  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 if possible.

  9. The COVID-19 List will operate electronically, meaning that the application may be heard by a Judge or Senior Registrar from any Registry.

  10. If a matter is listed for an urgent hearing before a Judge or Senior Registrar via the National COVID-19 List, that Judge or Senior Registrar will only hear the discrete COVID-19 related issue, or put interim arrangements in place 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 Registrar as appropriate.

Filing an application in the COVID-19 List

  1. Applications to be placed in the COVID-19 List are to be filed by email to:

    1. COVID19List@familycourt.gov.au; or
    2. COVID19List@federalcircuitcourt.gov.au .
  2. To file an application in the COVID-19 List, the Applicant must file:

    If the orders sought relate to parenting

    If the orders sought relate to property

    1. The application;
    2. A supporting affidavit of no more than 6 pages using the COVID-19 template affidavit;
    3. A cover letter for urgency – see Annexure;
    4. A Notice of child abuse, family violence or risk.
    1. The application;
    2. A supporting affidavit of no more than 6 pages using the COVID-19 template affidavit;
    3. A cover letter for urgency – see Annexure;
    4. A financial statement
  3. In accordance with JPD2 of 2020 Special Measures in response to COVID-19, the Application and Affidavit may be signed electronically. The Affidavit may be filed without a qualifying witness also signing the document.

  4. The Affidavit 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 negotiation, or details of why it was not safe to attempt to resolve the dispute by negotiation; and
    5. details of how it is proposed the Respondent can be provided with a copy of the court documents, including information about the Respondent’s current email address and telephone number, including for any legal representative;
    6. whether the Applicant seeks that the Respondent be served by email, and if so, the affidavit must include evidence that the Respondent has recently used that email address (e.g. annexing to the affidavit an email recently received from that email address); and
    7. if applicable, annexing (or attaching a copy or photo of) any current family law orders, parenting plans, or family violence orders, e.g. an intervention order or domestic violence order and details of any charges or convictions resulting from breaches of those family violence orders.
  5. Unless it is not safe to do so, the Applicant must copy the Respondent into the email when emailing the documents to the Court to put them on notice of the proceedings.

  6. The Registrar may require the Respondent to file answering material on short notice.  If the Registrar or Judge requires further material to be filed to be able to deal with the COVID-19 related issue, that will be conveyed at the first return date.

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

  1. Which applications will be accepted into the expanded COVID-19 is at the discretion of the National Registrar or Judge assessing the application. However, to provide a degree of guidance, the following are examples of applications that may be considered suitable, subject to the specifics of each case, for filing in the 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.

THE HONOURABLE JUSTICE WILLIAM ALSTERGREN
CHIEF JUSTICE
FAMILY COURT OF AUSTRALIA
CHIEF JUDGE
FEDERAL CIRCUIT COURT OF AUSTRALIA
DATE: 15 JANUARY 2021

Annexure: Template COVID-19 cover letter for urgency

Dear 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 [Family Court of Australia/Federal Circuit 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 property 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 negotiation, or details of why it was not safe to attempt to resolve the dispute by negotiation;
  5. details of how it is proposed to provide a copy of these court documents to 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. If applicable, annexes (or attaches a photo or copy of) any current family violence order, e.g. an intervention order or domestic violence order.

Regards,