Death of a Separated Parent

The death of a parent who shares responsibility for a child will often create legal complexity beyond the personal loss. In Australia, the question of who will care for minor children depends on the family dynamic, the views of the surviving parent and the children themselves, any testamentary wishes, and the legal framework created by the Family Law Act 1975. This page deals with how the death of a separated parent impacts parenting arrangements.

Parental responsibility

In most cases, the parental responsibility of a parent ends with their death and the other parent automatically has sole parental responsibility for the children. However, this transition is interrupted in several circumstances, such as if there was a Parenting Order in place.

Section 65K of the Family Law Act allows for a parenting order that specifies what should happen upon the death of a parent. For instance, a parenting order may specify that if one parent dies, the other will automatically take sole parental responsibility for the children. However, the court is not inclined to make these types of orders unless there is evidence to suggest that the parent is likely to die. In the matter of S & W [2002], for instance, a father asked the court to make an order for the children to reside with him if their mother became ill or passed away. In this case, the court found that the mother was relatively young and in good health, with no likelihood of dying before the child reached the age of eighteen. The court felt that if the mother became incapacitated or died, the father should then make an application, so the court could properly assess the child’s best interests at that point in time.

Death of a parent with sole parental responsibility

A more significant issue arises when there is a parenting order in place that gives sole parenting responsibility to a parent who then passes away. In that case, the Federal Circuit and Family Court of Australia (or Family Court of Western Australia) need to consider what further orders can be made that are in the best interests of the child given the new circumstances. There may be sound reasons, such as lack of prior relationship or substance abuse issues, why the original order was given for sole parental responsibility. In that case, it may not be in the best interests of the child to live with the surviving parent.

Of course, even a less-than-ideal arrangement with the surviving parent may be in the best interests of the child in the new circumstances. The surviving parent can make a new application for a parenting order, and the court will make a decision based on the best interests of the child at that point in time. The surviving parent can increase their chance of being granted parental responsibility by demonstrating that they can provide a safe and stable home environment. This might require providing evidence of the ability to meet the child’s physical, developmental, and emotional needs, and any plans for the child’s wellbeing, education, and personal needs. The surviving parent might also pre-emptively address any concerns the court might have about a history of mental health issues or substance abuse, or previous incidents of family violence. In these cases, the surviving parent might provide evidence of their efforts to address these concerns and demonstrate steps taken to ensure that the child would be safe in their care.

However, if the circumstances that led to the original order have not been sufficiently addressed, then the court is likely to decide that the child should not live with the surviving parent. The court may order that the child retain a meaningful relationship with the surviving parent but remain in the care of other individuals, such as grandparents or other extended family members. Alternatively, in the absence of suitable carers, the court may argue that it is in the best interests of the child to be placed in foster care.

Testamentary wishes

The deceased may have nominated a guardian for their child in their will. This nomination is not legally binding, as children are not property and ownership cannot be transferred. In Gelber & Halliday [2020], the court commented that the deceased could not bequeath any form of parental responsibility in her will and that parental responsibility needed to be adjudicated according to the Family Law Act. However, a will that clearly states a guardianship arrangement gives the court an idea of the deceased’s wishes for their child. It is important to stress that no testamentary appointment of a guardian can override an existing court order or stop the surviving parent or other suitable person from making an application for a new order.

Parental responsibility arrangements can be complex, especially in the event of a parent’s death. The court encourages all parties to keep in mind that the welfare of the child is the priority, and they should try to avoid causing the child further trauma or grief. If you find yourself in this situation, it is important to seek advice to understand your legal rights and responsibilities. Please contact the family law team at GTC Legal on 1300 636 846.


Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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