February 26, 2024

Critical Incident List: What happens when there is no parent to care for a child due to death, critical injury, or incarceration

Publications | Resources

By Georgia Bishop, Lawyer

Trigger warning-this article contains sensitive material which some individuals may find confronting.

The Federal Circuit and Family Court of Australia (“FCFCOA”) have brought into focus the need to help families make appropriate arrangements for children when there is no parent available to care for them due to death, critical injury, or incarceration. Such arrangements include:

  1. Enabling family members or appropriate interested persons to obtain identity documents, birth certificates, Medicare benefits, travel documents, and make long-term decisions (such as education and residence) on behalf of the child1;
  2. To put protective orders in place;and
  3. To remove the child from being a ward of the Minister/State.

Accordingly, as of 6 June 2022, these matters are now fast tracked by the FCFCOA through the Critical Incident List.

In exercising its jurisdiction to hear parenting matters, the FCFCOA has the power to make orders for a person other than a child’s biological parents to have parental responsibility to make long-term decisions and care of a child in circumstances where the child has no parent available to care for them.

In doing so, the FCFCOA is required to consider those factors set out in section 60CC of the Family Law Act 1975 (Cth). A review of published cases from the Critical Incident List indicates the following non-exhaustive list of factors are of particular relevance:

  1. Whether the other parent (if alive) has been contacted and, if appropriate, their view;
  2. Whether a meaningful relationship between the other parent (if contactable) and child is appropriate in the circumstances;
  3. The involvement of the relevant welfare or child protection agency and any reports made regarding the care and welfare of the child;
  4. The findings of any police reports (if applicable) and whether any party has any existing charges and/or convictions against them;
  5. The view of other interested parties (such as additional family members);
  6. The proposed care arrangement and the capacity for the proposed carer/s to meet the needs of the child including financially, physically, and emotionally; and
  7. The support available to the child.
Example of a critical injury case

In Xieren & Huyen [2023] FedCFamC1F 292, the FCFCOA held it to be in the best interests of the child that they have certainty as to what will happen when their terminally ill primary carer, who had sole responsibility, passes or loses capacity to care for them. In making orders for the paternal aunt and uncle to care for the child upon those events occurring, the Court considered that the primary carer had exhausted all options in attempt to ascertain the views of the other parent (who was not active participant in the child’s life). Further, whilst the paternal aunt and uncle lived in the United States of America, it was held that the support that would be provided to the child upon the primary carer’s passing was critical and, accordingly, international relocation upon the primary carer losing capacity or as agreed between the parties was deemed appropriate.

Example of a case involving incarceration and death

The complexity and sensitivity of the matters in the Critical Incident List was demonstrated in the case of Haillet & Ghanalayini [2023] FedCFamC1F 509. The facts in that case were:

  1. Competing applications for parental responsibility by the child’s maternal and paternal grandparents were before the Court, including an order sought by the maternal grandparents to relocate the child to their country of residence.
  2. The child’s mother had recently passed away and the father was incarcerated for several charges for numerous domestic violence and assault offences and had a history of breaching domestic violence orders. The circumstances of the mother’s death were unknown to the FCFCOA save that the father had found the mother deceased, denied any responsibility for causing her death, and had not been charged with her murder.
  3. At the time of the proceeding the child was under the parental responsibility of the Minister for Families and Communities.
  4. The Department of Communities and Justice (“the Department”) were invited to intervene in the proceedings and did so.
  5. The incarcerated father was notified of the proceeding and listed as a respondent providing him with an opportunity to participate.
  6. It was not disputed that the child had a loving relationship with all his family members.

In this case, the FCFCOA considered the child’s relationship with the maternal grandparents and the paternal grandmother, and their respective capacity to care for the child and protect him from harm. This also involved consideration of the Department’s involvement with the child’s family, including the paternal family, in 2022 and 2023, and the police records which depicted a series of domestic violence incidents leading to the mother’s death.

The FCFCOA ultimately held concerns about the paternal family’s ability to protect the child from harm in circumstances where they had knowledge of the harm committed by the father against the mother and lacked insight. On an interim basis, pending the family report and on the expiry or discharge of the Children’s Court’s order, the maternal grandparents were granted parental responsibility, permission to relocate the child out of the Commonwealth of Australia, and ordered to facilitate video communication once a week between the paternal grandmother and the child.


In circumstances such as these, it is important to obtain legal advice as to the options available to you and your family in relation to the long-term care and welfare of a child whose parents are unable to care for them. It is also important that you take care of yourself. If you are in need of support, please contact Beyond Blue on 1300 22 4636 for 24/7 advice, referrals, and support from trained professionals.

[1] Watkins & Goddard [2023] FedCFamC1F 603; Xieren & Huyen [2023] FedCFamC1F 292.

[1] Watkins & Goddard [2023] FedCFamC1F 603.