In Tasmania, a parent of a child can appoint a person in their will to become their child’s legal guardian in the event that both parents die.
A person who is appointed under a will to become a child’s guardian can immediately become the physical carer to the child, however it may be difficult for the guardian to give the necessary consents or to have the required authority to be able to make decisions on the child’s behalf.
In such a case, the parent’s Will is the only evidence of the guardianship appointment. A problem arises when an institution doesn’t readily accept a Will as evidence of guardianship. We have recently seen this happen for private health insurance requests and passport applications.
Currently, the only other option for procuring evidence of guardianship is for guardians to apply for parenting orders in the Federal Circuit and Family Court of Australia. Other than parents of the child, these applications can be made by grandparents and persons interested in the welfare and care of the child (“interested persons”).
Parenting orders can grant a guardian decision making responsibility for and care for the child. These orders are set out in a sealed court document, which can be used to prove the guardian’s legal position.
The Family Law Act 1975 (Cth) defines decision making responsibility as:
the right of a person to make decisions about major events in a child’s life, such as education, living arrangements, and medical treatment.
If the guardian is a grandparent or relative
Any person can apply for a parenting order to obtain legal guardianship of a child, provided that they are an interested person. This could include someone who is not a relative of the child but who has a close relationship with the child or one or both of the child’s parents. If a parent has executed a will naming a person as the guardian for the child, that person would qualify as an interested person.
However, if the person applying for a parenting order is not a relative of the child, there are additional protocols which must be followed before the Court can make a parenting order.
A relative includes the following under section 4(1) of the Act;
- Step parent;
- Sibling of the child, including half and step;
- Grandparent;
- Uncle or aunt of the child;
- Nephew or niece of the child; and
- Cousin of the child.
Guardians who are grandparents or relatives of the child may apply for parenting orders under section 65C of the Family Law Act 1975 (“the Act”). If the legal guardian is seeking the following parenting orders then they may apply via a consent application, provided that there are no other parties who oppose the making of the Orders (such as another relative or interested person):
- that the child lives with the legal guardian; and/or
- that the legal guardian be allocated decision making responsibility.
If the guardians is not a relative
If the guardian is not a grandparent or relative of the child, but they are seeking Orders that the child lives with them and/or that the be granted decision making responsibility for the child, then the guardian will need to apply to the Court under section 65G of the Act as ‘non-parents’ via an initiating application. This is required even when there are no parties in opposition to the Orders being made. In this instance, the Family Law Act 1975 (Cth) requires that the parties must attend a conference with a Family Consultant to discuss the matter to be determined by the proposed order. Alternatively, the Court must be satisfied that there are circumstances that make it appropriate to make the proposed order even though the parties have not met with a Family Consultant.
If you would like further information about guardianship for children, contact our Family Law team.
