Time and time again Shire Legal prepares Wills for parents who are living in Australia and whose ex-spouses are resident overseas, with little or no contact with the children. If the Australian parent dies, will the children be required to move overseas to live with their surviving parent?
Not necessarily. Under the Guardianship of Infants Act 1916 (NSW), the surviving parent becomes the guardian, unless there are exceptional circumstances or orders in place (e.g. the deceased parent has sole custody). However, the child’s Australian relatives can apply to the Family Court for a parenting order under Part VII Division 5 of the Family Law Act 1975 (Cth), to grant them the right to care or visit the child. Parenting orders may also be appropriate for step-parents, as an alternative to going through a formal adoption process.
As general rule when making parenting orders, the Court will consider what is in the best interests of the child, by:
- ensuring the child has the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;
- protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
- ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
- ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles followed by the Court are:
children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
- children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
- parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
- parents should agree about the future parenting of their children; and
- children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The Court will of course take into account anyone nominated in the deceased parent’s Will as the child’s guardian.