What happens when a parent dies?
The death of any family member is a difficult time. When that person was also a separated parent, with a young child, this can present a complex situation to navigate. As is the case in any matter involving children, the focus of the Family Law Act is the best interests of the child.
In this week’s article we look at how the Courts deal with matters where a parent dies.
Where will the child live?
Section 65K of the Act deals with the situation where the parents have orders, and the ‘live with’ parent dies. In these situations, unless the Orders contain a specific provision that requires the child live with the other parent upon the live with parents death, then the surviving parent cannot require that the child is to live with them (s65K(2)).
The surviving parent can make an application to have the child live with them (s65K(3)). This may seem unfair, but the focus of the Family Law Act is ensuring the best interests of the child are being met. Situations can arise where it would not be in the child’s best interest to live with the other parent. For example, if the other parent had no relationship with the child prior to the live with parents’ death or the other parent had a long-standing drug problem that placed the child at risk.
Who makes decisions for the child?
If the parents had joint parental responsibility before one parent died, then the other parent will continue to have parental responsibility for the child.
What if I have a Will?
You can nominate a guardian for minor children in your Will, this is known as a testamentary guardian. A testamentary guardian is appointed pursuant to the NSW Guardianship of Infants Act 1916.
An appointment of a guardian does not however override orders made by the Federal Circuit and Family Court. Nor does it stop the surviving parent, or some other person, from making an application to the Federal Circuit and Family Court for the child to live with them.
In the matter of Gelber & Halliday [2020] the Court commented that: -
Section 65K and the related provisions of Part VII, being Federal legislation, supplant the provisions of the Guardianship of Infants Act. Ms B was not able to bequeath any form of parental responsibility, for X and Y, to Ms Halliday, pursuant to the provisions of her will. The issue falls to be adjudicated pursuant to the provisions of the Family Law Act. [at 121 ]
Should orders provide what happens after the death of a parent?
This is a tricky question, because it largely depends on the circumstances of each individual case. It is impossible to predict what may happen in the future and what may be best for the child many years away.
What may seem to be a suitable situation at the time of making orders, may be entirely inappropriate when the actual situation arises.
For example, parents may make orders where: -
The parties make parenting Orders that provide for the child to live with the Father. The child is 3 years of age when the Orders are made. Both parties are in good health and neither have any reason to believe they will die before the child turns 18 years of age. Despite this, the parties agree to an order that the child is to live with the Mother if the Father dies.
The Mother spends time with the child for 12 months. When the child turns 5, the Mother moves to another state and does not spend any time with the child and ceases to communicate with the child.
The Father re-partners and has a baby with his new partner. After 3 years the Father is diagnosed with a terminal illness. The Father’s health declines, and he spends long periods of time in hospital.
The child’s step-mother cares for the child whenever the Father is in hospital. The stepmother is supported by the paternal grandparents, who live nearby, and her family who visit regularly.
When the child turns 10 the Father dies. The Mother is advised of the Father’s death and decides she wants the child to live with her per the Orders she had with the Father. The Mother is not prepared to move back to where the child has been living.
It would be hard to see how this outcome could be in the child’s best interest. This would result in a child living with a parent, who they have not had spent any time with for 5 years. The child would be removed from their sibling and support network.
In this scenario the stepmother can bring an application to have that order set aside and a new order made for the child to live with her.
However, the child may have to live with the mother for a period before the Court hears that application. That may lead to further disruption for the child.
What do the Courts do?
Case Law suggests that the Courts are not minded to make orders that deal with arrangements after one parents death, unless there is some evidence to suggest that one parent is likely to die.
In the matter of S&W [2002] the Court was asked by the Father to make an order that the children live with him if the Mother were to become ill or die. In this matter the Court stated
…whilst section 65K of the Family Law Act contemplates a parenting order being made that provides for what is to happen on the death of a parent, I am not satisfied that I should make such an order at this time. There has been no evidence led on this point, and no chance for the mother to put any submission. The evidence is that the mother is aged 39 years. There is no evidence that she is in other than good health or that she is any more likely to die before the younger child attains the age of 18, in June 2017, than any other woman of her age, place of residence or state of health. Should the mother meet an untimely death or become so incapacitated by an illness that she cannot care for the children over the next fifteen years, than an application may be made to this court.
By having an application made at the time of a parents passing, the surviving parent and if necessary the Courts can properly assess what will be in the child’s best interest.
What about family members? Can they make an application for the child to live with them?
The situation may be that it would be better for the child to live with someone other than the surviving parent. Section 65K of the Act envisages this, allowing the surviving parent or another person to bring an application for the child to live with them.
The other person must have a connection with the child as outlined in section 65C of the Act. The other persons listed in s65C of the Act include: -
the child
a grandparent of the child
any other person concerned with their care, welfare or development of the child
In our example above, another person would include the child’s stepmother, being a person that is concerned with the child’s care, welfare, and development.
Important considerations
When considering what arrangements are suitable for a child after the passing of a parent, it is important that everyone involved in the matter keeps at the forefront of their mind that a child has lost a parent.
These cases needed to be treated carefully to avoid causing the child further grief or trauma. Acting rashly or aggressively is likely to cause the child further pain and, if the matter were to end up before a Court, bring into question the surviving parent’s ability to place the child’s needs above their desires.
Counselling is an important part of this process. Counsellors can assist the surviving parent to work through their own feelings about the death of the other parent and provide valuable tools to the surviving parent to help the child.
Legal advice is also essential. As with most aspects of Family Law everyone will have an opinion on what you should do, and they will share that with you. Family Lawyers understand the law and the ‘bigger picture’. They know to examine the nuances of your situation and work out what the best way forward is for your situation.
Please note: the information in this article is general in nature and is not legal advice. For specific advice about your circumstances, contact us to make an appointment with one of our solicitors.