The death of a parent is an incredibly difficult time for any child and their extended family. While navigating such loss, there are significant legal and practical decisions to be made about what a child’s ongoing care arrangements look like.
When a Parenting Order Is in Place: Section 65K of the Family Law Act 1975
If a parenting order was in place at the time of a parent’s death, the arrangements outlined in that order do not automatically transfer to the surviving parent. Instead, section 65K of the Family Law Act 1975 applies.
Section 65K provides that
The surviving parent cannot require the child to live with him or her; and
The surviving parent, or another person (subject to section 65C), may apply for a parenting order that deals with the person or persons with whom the child is to live.
This means the existing order becomes ineffective insofar as it relates to the deceased parent. The surviving parent does not automatically assume sole care or decision-making responsibility for the child. In some cases, it may be necessary for the Court reassess the child’s living arrangements to determine what arrangements operate in the child’s best interests.
It is not only open to the surviving parent to seek further orders about the child’s care arrangements. Any individual with a significant connection to the child, such as a grandparent or close family member, can also seek Orders from the Court concerning the child’s ongoing care arrangements.
What if there is no Parenting Order?
Not all parents (including separated parents) have parenting orders for their children (i.e. separated parents who are amicable, parents in an intact relationship, single parents etc). If no parenting order exists at the time of the parent’s death, the situation is more open than that described above. In many cases, if there is a surviving parent, then that parent will assume care of the child. However, this is not always the case.
Under section 65C of the Family Law Act 1975, the following individuals may apply for parenting orders:
The child’s parents (and in this case the surviving parent);
Grandparents; and
Any other person concerned with the care, welfare, or development of the child. This could include step-parents, close relatives, or family friends.
What will the Court consider?
In either of the above situations, the paramount consideration of the Court will be the child’s best interests. In assessing a child’s best interests, the Court is required to consider the matters set out in section 60CC of the Family Law Act 1975, namely:
What arrangements promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and(ii) each person who has care of the child.
any views expressed by the child;
the developmental, psychological, emotional and cultural needs of the child;
the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;
the benefit to the child of being able to have a relationship with the child's parents (and in these cases the surviving parent), and other people who are significant to the child, where it is safe to do so; and
any other matters that are relevant to the particular circumstances of the child.
Appointing a Guardian in a Will
Parents can nominate a guardian for their child in their Will. While this nomination is not legally binding, it is an important factor that the Court will consider. The Court may give considerable weight to the deceased parent’s wishes, particularly if the nominated guardian has an established relationship with the child.
Robinson + McGuinness can assist you in preparing your Will, including provision for the care of minor children in the event of your death.
Seeking Legal Advice
Care arrangements after the death of a parent are legally complex and can be highly emotional. Whether or not a parenting order already exists, it is important that decisions are made promptly concerning a child’s care arrangements and that they are in the child’s best interests. Regardless of whether you are the surviving parent or another person who has an established relationship with the child and who is concerned for the care, welfare and development of the child, you must obtain prompt legal advice.
Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.