Page updated on: Friday April 23, 2010
A guardian has all the rights and responsibilities that a parent has in bringing up a child. Usually the parents are joint guardians of the child. A guardian’s responsibilities include –
Guardians can ask the Family Court to arrange counselling to try to resolve the dispute, or they can apply to the Court for directions. The most important factor in any decision the Court makes will be the child’s welfare and best interests.
The father and the mother of a child are usually joint guardians. They are often referred to as “natural guardians”. However, in some situations the mother may be the sole guardian.
While a child’s mother will automatically be a guardian of the child. The father is a guardian if –
1. he was married to or in a civil union with the child’s mother at any time from when the child was conceived until it was born; or
2. where the child was conceived before 1 July 2005, he was living with the child’s mother when the child was born; or
3. if the child was conceived on or after 1 July 2005, he was living with the child’s mother at any time between conception and the birth, or
4. he was recorded as the father of the child on the birth certificate on or after 1 July 2005; or
5. the Family Court appoints him as a guardian.
Parents continue to be guardians even if they separate.
In some situations people other than a child's parents can become a guardian –
Testamentary guardians are appointed by a parent of the child, in a will or deed. The person appointed becomes a guardian automatically when that parent dies. They become a joint guardian with any other guardians.
However, a testamentary guardian does not have a role in providing day-to-day care for the child, but they can ask the Family Court to make a parenting order so that they have, or share in, day-to-day care.
If the other parent or guardian doesn’t want the appointed person to be a guardian they can go to the Family Court to ask the Court to remove that person as guardian or to appoint someone else instead.
The Family Court can appoint someone who isn’t already a natural guardian of a child to be that child’s guardian. The Court can do this when someone has applied to the Court for this, or it can appoint someone on its own initiative when it removes a guardian. A Court-appointed guardian can be appointed as a sole guardian, or jointly with any other guardians.
The child's best interests are the first and most important factor when the Family Court is deciding whether to appoint a guardian.
The Court can appoint the guardian for all purposes and for an indefinite period (for example, if neither parent is able to look after the child) or it may appoint the guardian for a specific period of time (for example, while a parent is overseas, ill or in prison).
However, in some cases the Court may decide to appoint the guardian for a particular purpose only (for example, to consent to medical treatment such as a blood transfusion that the child’s parents won’t consent to).
In some situations a new partner of a parent can be appointed as a guardian by the Family Court Registrar without a Court hearing before a Judge.
The new partner must have been sharing day-to-day care of the child for at least a year. The couple can be married, in a civil union, or in a de facto relationship.
There are a number of restrictions on when a parent can appoint a new partner as guardian. For example – the new partner must not have ever been involved in any Family Court case about guardianship or care arrangements for a child, or ever had anyone apply for a domestic violence protection order against them, or been convicted of certain offences involving children.
Other restrictions mostly relate to whether the child and the appointing parent have ever been involved in a Family Court case. Also, the parent cannot have already appointed a partner as a guardian of the child.
Who has to consent to the new partner being appointed?
What is the process for appointing a new partner as guardian?
There’s a special form that must be signed, usually by both parents and the new partner. You can access a self help resource on this process here.
The form must be accompanied by –
1. If both parents are alive, they must both agree to the appointment, whether or not they are both guardians of the child.
2. If the child has any other guardians, they must also consent to the appointment.
3. The child must also be consulted about the new partner being appointed a guardian.
What is the process for appointing a new partner as guardian?
There’s a special form that must be signed, usually by both parents and the new partner. You can access a self help resource on this process here.
The form must be accompanied by –
In some cases the High Court or Family Court will appoint itself to be a child’s guardian and will usually appoint Child, Youth and Family Services to act as its agent.
When the Court becomes a guardian, it takes priority over the rights of any existing guardians.
Guardianship of a child ends when the child –
The Family Court can take away a parent’s guardianship only if –
Only when in the child’s best interests will the Court decide to remove a testamentary guardian, a Court-appointed guardian, or a new spouse or partner appointed as an additional guardian.