How to become a legal guardian of a child in Australia

The thought of passing away and leaving behind young children is a very confronting notion. While many well-intentioned parents seek to make plans for what would happen to their children if the unthinkable happened to them, appointing someone to care for children in a Will, while very persuasive to the Courts, is not actually a binding appointment. 

By Evan Avtzis, Lawyer at AFL-Kordos Lawyers, Melbourne.

If there are multiple concerned relatives and friends left behind who want to care for the children, this can lead to extended and costly litigation for all involved. Disputes can also arise if only one parent passes away, but the surviving parent does not live with the children (especially in circumstances where there may be concerns for the children’s safety). 

Suffice to say, knowing how to become a legal guardian of a child in Australia, within the Australian legal system can be a complex area to navigate, and that’s why we’ve written this post.

What does the Family Law Act specify?

The Family Law Act no longer speaks of terms such as “guardianship” and “custody”. Instead, it refers to “live with” and “spend time with” arrangements, and “parental responsibility”.

Parental responsibility is what most people mean when they think of guardianship. It gives the party with whom the responsibility vests the power to make long-term decisions in relation to the children (including religion, schooling and medical decisions).

Parents have a presumption of equal shared parental responsibility for children. If both parents pass away, or if one parent passes but it would not be appropriate for the remaining parent to care for the children, then grandparents or any other person that is concerned with the care, welfare and development of the children may apply for a parenting Order in relation to the children (seeking parental responsibility for the children, for the children to live with them, or both).

If there is a surviving parent that does not live with the children pursuant to a Court Order, the surviving parent cannot simply require the children to live with them and they will need to apply for a parenting Order.

What about the Court?

While the Court typically prefers to make Orders for children to live with relatives, non-relatives who have had significant involvement in a child’s life can also apply for parenting Orders to become the child’s “guardian” so to speak. The Family Law Act does require the parties to attend upon a family consultant in such circumstances however, this process can be waived if the Court is satisfied that the circumstances are such that it is appropriate for the Order to be made without the need for this process.

In the event that a parent is terminally ill but still has the capacity and time to get their affairs in order, that parent can make an Application for Consent Orders in the Federal Circuit Court with the intended ‘guardian’ of the children as a party to the proceedings. This is the only way to be certain that the children will be cared for in line with their wishes and guard against future proceedings that could be brought by other well-intentioned relatives or friends.

Related reading: An expert legal guide to stepparents’ rights in Australia

How to become a legal guardian: State-based legislation 

Under State based legislation, there are sometimes references to “becoming a legal guardian of a child” however, the use of this term and the process varies drastically from State to State.

New South Wales

In New South Wales parties can apply to become the legal guardian of a child by obtaining a “guardianship order”. This is done through the Children’s Court under the Children and Young Persons (Care and Protection) Act 1998

Guardianship orders are final and long-term Orders that are made to place a child under the age of 18 years of age into the independent care of a person other than their parents by transferring to the intended guardian parental responsibility of the child/ren. These Orders are made as an alternative to foster care and can be made in circumstances where the Court decides that it is not safe for a child to live with their parents.

Following recent amendments, these orders can also be made by the Children’s Court by consent, without the need for a hearing, so long as the Court is satisfied that all parties received independent legal advice. Guardianship orders are designed to stay in place until the child/ren reaches the age of 18, unless there has been a significant change in circumstances beforehand.

Unlike adoption in Australia, guardianship orders do not sever the legal ties of a child to their parents and children can still maintain contact with their parents and/or extended family members if the Court deems it appropriate.

Guardianship orders are only made if the Children’s Court is satisfied that:

• There is no real possibility of a child or young person returning to the care of their parents;
• The person applying to be a guardian will provide a safe, nurturing, stable and secure environment for the child;
• Written consent is given by the child if they are aged 12 years or older and have the capacity to provide consent; and
• If the child is of Aboriginal or Torres Strait Islander descent, their placement follows the appropriate placement principles.

Guardians appointed under a guardianship order may also be eligible to receive a “guardianship allowance” from the government to help cover the typical costs of day-to-day care of children. This allowance ceases when the child/ren reaches 18 years of age or if the parties relocate outside of New South Wales.

Victoria

In Victoria, however, there is no reference to “guardianship” in relation to children. Instead, one can apply for a “permanent care order” under the Children, Youth and Families Act 2005 (VIC) through the Children’s Court. This can be done either upon the death of a child’s parents, or in circumstances where the child’s parents have not cared for them for a period of 6 months.

Permanent care orders can convey parental responsibility of the children upon the Guardian until the children reach 18 years of age. As such, this is a viable alternative to seeking a parenting order under the Family Law Act however, the Court cannot make a permanent care order if there is a present application made under the Family Law Act. Furthermore, once made, a permanent care order is suspended if an application is made under the Family Law Act (although such applications must be made with the prior approval of the Head of the relevant Government Department).

This means that when seeking parental responsibility for a child in Victoria, it is advisable to pursue this through the relevant provisions of the Family Law Act so as to ensure finality in the appointment of a “guardian”.

How to become a legal guardian: Adult children

A parent’s responsibility to care for their children does not always end when the child turns 18. In circumstances where parents are concerned about their adult children’s capacity to make personal and financial decisions, parents can apply for guardianship or administration orders. The legislation is State based and so it changes from State to State. In Victoria, one can do this under the Guardianship and Administration Act 2019 (VIC) through VCAT. New South Wales has similar provisions for Guardianship of adult children under the Guardianship Act 1987 (NSW).

Guardianship orders provide a guardian with the power to make personal decisions in relation to the represented person. These can include

• Where and with whom they live;

• Who they associate with;

•  Their employment

• Their education and training;

• Day-to-day things such as their diet and their dress; and

• Certain medical treatment decisions.

Administration orders convey the power to make decisions in relation to financial matters for a represented person. These include any matter relating to the person’s financial or property affairs and includes any legal matter that relates to their financial or property affairs.[

How we can help

Ensuring that children (including those over the age of 18) are looked after is at the forefront of every parent’s mind and there are many ways to approach this, which vary from State to State.

Knowing how to become a legal guardian in Australia has a few caveats. Sound legal advice could be beneficial if you’re in this situation. Reach our friendly team directly or request a call back via the form below.