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Family Law

Death and family law

By October 4, 2017October 19th, 2017No Comments

By Gianna Huesch

What happens when a parent dies after a parenting order has been made, or a party to a family law proceeding dies?

When a parent dies

It’s not something we like to dwell on as parents, but on occasion, the sad reality is that a parent dies while they have the care of minor children.  What happens then, if a parent dies after a parenting order has been made ordering the child to live with them?

If the parenting order requires that a child under 18 lives with one parent and that parent passes away, unless the parenting order states what is to happen in the event of the parent’s death, the surviving parent isn’t automatically entitled to take the child to live with them.

Usually, the scenario is that the surviving parent will want the child to live with them.  This may, however, not always be in the child’s best interests.  There may also be other individuals, such as a step-parent or a grandparent, who have been far more involved with the child and express an interest in the care, welfare and development of the child.  In such cases they may well wish to have the child live with them.

Sometimes, all relevant parties can come to an agreement over the child’s living arrangements without the intervention of the family courts. But where there is a disagreement, the surviving parent or other relevant individual can apply to the family courts to determine with whom the child should live and who should have parental responsibility going forward. 

As usual, the family courts look at the child’s best interests in reaching a decision on this and any other parenting issues.  In considering whether an individual is an appropriate carer for the child, the courts will consider things like the amount of contact the person has had with the child, whether they live a long way away and a move would cause a complete upheaval in the child’s life, and any other circumstances where it may not be ideal to award custody to the individual, such as restraining orders made against them or family violence perpetrated by them, or drug and alcohol abuse issues.

Even when parties can come to an informal agreement over the child’s living arrangements, having such agreement formalised by consent orders is usually a good idea.  For example, schools, health professionals and government departments often need a formal record of the agreement.

When a parent is aware they are terminally ill, they may consider entering an application or an agreement with relevant other parties before they pass away, for certainty and peace of mind. 

Parents (whether ill or not) may also choose to appoint someone to be guardian of their child in the event of their death in their will.  However, this is not legally binding under family law and is only taken as an expression of the deceased parent’s wishes.

Having said that, while the family courts makes the final decision regarding the appointment of a guardian, wills are nevertheless respected legal documents and, provided the will is made validly, the wishes you have set out in it would still be taken very seriously by the family court.  As such, many parents do consider appointing a guardian to alleviate concerns over what will happen in the event of their death.

In making this difficult choice, parents should consider a range of issues in reaching the decision on who would best care for your child.  Such issues include: with whom your child already has a bond, which person has a close alignment in lifestyle and values to your own, how onerous the practical transition would be for your child (and for the guardian), and ultimately, who can realistically fulfil the role (financially, psychologically and physically).

When a party to family court proceedings dies

Sometimes, family court proceedings are under way, and then suddenly, a party dies.  What happens in such a case?  Under the Family Law Act, proceedings already commenced are permitted to continue, run by or against the estate of the deceased person.  The court will make orders regarding property in the same way it would have if the person were still alive.  The representatives of the deceased, such as the executors appointed under a will, instruct lawyers, pay legal costs and ensure compliance with court orders.

On the other hand if proceedings have not yet been commenced when the death occurs, no claim can be made under the Family Law Act. The court can, however, make provision out of the estate of the deceased for maintenance, education or advancement of an eligible family member if a court determines that inadequate provision was made from the estate or even during the life of the deceased person.  This authority is granted under the Family Provision Act.

To discuss any of these issues with one of our experienced solicitors, please contact Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice.  For information on how to obtain the correct legal advice, please contact Alliance.

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