What hap­pens to chil­dren on the death of a res­i­den­tial par­ent in the con­text of divorce and separation

There is no auto­mat­ic right for the sur­viv­ing par­ent to have the care of chil­dren after the death of the res­i­den­tial par­ent. On the death of a res­i­den­tial par­ent the par­ent­ing order that spec­i­fies that the chil­dren would live with them ceas­es. Most par­ents have joint parental respon­si­bil­i­ty, so it is like­ly that the sur­viv­ing par­ent will con­tin­ue to make impor­tant deci­sions for the chil­dren such as where they will go to school, whether they have an emer­gency med­ical pro­ce­dure, whether they have ortho­don­tic care etc. 

A par­ent can appoint a guardian of chil­dren in the event of their death but this is not bind­ing and will be tak­en only as an expres­sion of that par­en­t’s wishes.

It is best if the remain­ing par­ent and oth­er rel­a­tives or per­sons who have been involved in the care of the chil­dren can come to an agree­ment about where and with whom the chil­dren shall live. Solic­i­tors, The Fam­i­ly Rela­tion­ship Cen­tre, alter­na­tive dis­pute res­o­lu­tion prac­ti­tion­ers and coun­sel­lors can be of invalu­able assis­tance to peo­ple who are faced with this very dis­tress­ing circumstance. 

If it can­not be agreed between the com­pet­ing par­ties where the chil­dren will live, then this is a mat­ter that will be decid­ed by the Fam­i­ly Court of Aus­tralia or Fed­er­al Cir­cuit Court of Aus­tralia. A par­ent, a child, a grand­par­ent or any per­son con­cerned with the care, wel­fare or devel­op­ment of the chil­dren can apply for a par­ent­ing order. The court will deter­mine with whom the chil­dren will live and this will be based on what is in the best inter­ests of the children. 

Pri­or to com­menc­ing pro­ceed­ings in the court, it is nec­es­sary for the par­ties to attend on an accred­it­ed fam­i­ly dis­pute res­o­lu­tion prac­ti­tion­er. A Fam­i­ly Dis­pute Res­o­lu­tion Prac­ti­tion­er can be found at Fam­i­ly Rela­tion­ships Cen­tre and there are some Fam­i­ly Dis­pute Res­o­lu­tion Prac­ti­tion­ers who work pri­vate­ly or for oth­er organ­i­sa­tions such as Uni­fam, Inter­me­di­ate, Inter­re­late, Rela­tion­ships Aus­tralia and many oth­ers. It is the oblig­a­tion of all par­ties to attempt to resolve the par­ent­ing mat­ter pri­or to attend­ing to fil­ing an appli­ca­tion with the court. In the event that the Fam­i­ly Dis­pute Res­o­lu­tion Prac­ti­tion­er deter­mines that the par­ties can­not resolve their dif­fer­ences then they will pro­vide a Sec­tion 60I Cer­tifi­cate which will need to be lodged with the court when an appli­ca­tion is filed. If you do not have this cer­tifi­cate, you can­not com­mence pro­ceed­ings. If the mat­ter is urgent or there are alle­ga­tions of abuse or domes­tic vio­lence, it is not nec­es­sary to obtain a Sec­tion 60I Certificate. 

Where and with whom the chil­dren will live will be influ­enced by the ages of the chil­dren, the wish­es of the chil­dren and the capac­i­ty of the com­pet­ing par­ties to care for the chil­dren. The past par­ent­ing arrange­ments and atti­tude towards par­ent­ing will be care­ful­ly con­sid­ered as well as future arrange­ments pro­posed for the chil­dren pri­or to the court deter­min­ing where the chil­dren shall live.

A par­ent­ing mat­ter of this nature is com­plex. The solic­i­tors at Swaab are accred­it­ed spe­cial­ists and are experts in the area of fam­i­ly law. We are avail­able to assist and advise on all par­ent­ing mat­ters whether they are sim­ple or complex.