Mother's hand supporting a sad kid

Who has rights to make decisions for a child when there are deceased or incapacitated parents?

Nicole Stevens, ||

The Federal Circuit and Family Court of Australia has jurisdiction to make parenting Orders for a non-biological parent to have parental responsibility (which provides for that person to have decision making power for a child), when that child has no living parents or has a parent/parents who do not have capacity to care for the child. This could be due a number of reasons such as for example the child’s parents having been critically injured, or they are incarcerated due to family violence.

If urgent orders are required for a child whose parents have both passed, critically injured, incarcerated or have relinquished care for their child, a person who is significant to the care, welfare or development of a child (for example an adult sibling, Aunt or Uncle) may file an Application in the Critical Incident List, a relatively new initiative of the Federal Circuit and Family Court of Australia. The type of orders that can be sought can include:

  • Where the child will live;
  • Be enrolled into school;
  • For the engagement of medical assistance,
  • For the child to obtain a Medicare card; and
  • For the child to be covered by private health (particularly under a family cover).

A key objective of the Critical Incident List is to facilitate fast access to the Court to assist families during times of crisis, and where there is no parent available to care for a child.

This was the case in the matter of Bellamy where an 11 year old boy’s parents had both passed away and due to the circumstances of his father’s death (the latter of his parents to die) the child had significant mental health issues. The child’s half-brother, who the child had been living with since his father’s death, made an urgent application in the critical incident list to enable him to engage appropriate medical assistance for the child and to make an application to the NDIS for financial assistance.

What enquiries does the Court make?

Prior to making a determination of the Application in Bellamy, the Court requested the Department of Child Safety (the QLD equivalent of the Department of Communities and Justice) advise the Court of their involvement with the child. The Court further requested that the Application be brought to the attention of the “wider family members.” No other person made any application for the child to live with them and those who did respond, supported the Orders sought.

What else does the Court consider?

When considering the best interest of the child, the Family Law Act sets out the relevant factors to be considered.  The determining factor is “in the best interest of the child”.

Many of the sections of the Family Law Act refer to “parent.” But what happens if there are no living parents?  When considering an Application, the Court is also directed to consider not only the child’s parents but other people significant to their care, welfare and development. For example:

  • Section 60CC(3)(b)(ii) provides for the court to consider the nature of the relationship of the child with “other persons (including any grandparent or other relative of the child)”;
  • Section 60CC(3)(f)(ii) refers to the capacity of any person, including grandparents or other relative of the child, to provide for the needs of the child, including his emotional and intellectual needs.

The critical incident List is a fast-paced list which requires some degree of urgency with respect to long term decisions for a child.  The Court is focused on ensuring that applications (and by virtue of that a child) does not become embedded in a parenting process through the courts for any longer than they need to be.

If you are interested in obtaining advice in relation to making an application to care for a child whose parents have passed, please contact one of our experienced Family Lawyers.

How can I make arrangements for my child prior to my death?

A testamentary guardian is an adult who is appointed in your Will to be responsible for taking care of your child until the age of 18.  This includes making decisions in relation to their education and involvement in extra-curricular activities.

If you have further questions regarding caring for your child after your death, or wish to appoint a testamentary guardian in your Will, please contact our Wills and Estates experts in Parramatta and Norwest.

For more information please read this blog.


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