By Jessica Strangio, Senior Lawyer
Our team has previously provided some guidance on what happens in the event of the death of a party in family law property proceedings; however, what about parenting proceedings? It is a difficult subject, one that might be considered taboo to discuss. It certainly falls into the category of “what ifs.” It is, however, a possibility that should be talked about, so parents can plan in the best way possible for the future, when considering parenting arrangements for their children.
Where parties are separated, one might assume that if one parent dies and there are court orders in place, then the surviving parent automatically assumes parental responsibility for the child and the child lives with them. However, this is not the case, at least in a legal sense. In fact, Section 65K of the Family Law Act 1975 (Cth) “The Act” states that if a parenting Order does not provide what is to happen in the event of the live with parents death, then the other parent may apply for a parenting order that deals with the person or persons with whom the child is to live. This section also states that another person, to whom section 65C of The Act applies (such as a grandparent or other person concerned with the welfare of a child), can also make an application seeking parenting Orders.
But what is the Court likely to do in the event of this situation? Whilst it is not a common occurrence (and thankfully so), the Court has provided some guidance to parties who tragically find themselves in such a predicament. In the matter of Bellamy, the Judge found that it was appropriate to make Orders for the subject child’s older half-brother to have parental responsibility, in circumstances where both parents had tragically passed away. Although the case was determined before the 2024 parenting amendments, the judge’s reasons for that were based on consideration of, “Section 60CC (3)(f)(ii) (which could now be referred to as s2(d)), refers to the capacity of any person, including grandparents or other relatives of the child, to provide for the needs of the child, including his emotional and intellectual needs.” It can therefore be said that the Court looks at the capacity of the person applying for Orders when making a decision for parental responsibility.
More interestingly, in the matter of Hearn & Sempers [2017] FCCA 3357, the Court expressed the importance that, “Parenthood does not give a person priority when it comes to determining parenting arrangements.” [at 33]. Instead, (and relying on prior authorities such as Alridge & Keaton), emphasised that Orders should be determined on the particular child’s best interests as the paramount but not sole determinant. This case saw a child’s mother tragically pass away in a car accident, and the child was living with his stepfather and half-siblings. The child’s biological father applied for Orders for the child to live with him and for him to have parental responsibility.
The Court in that matter was greatly assisted by a family report, and considered the child’s views when determining the matter, although not the sole determinant. The Court also relied on the principle found in the matter of Rice & Miller [at 34], where it was held, “We would reiterate however, that the fact of parenthood does not establish a presumption in favour of the natural parent nor generate a preferential position in favour of that parent from which the court commences its decision making process. Each case must be determined according to its own facts, the paramount consideration always being the welfare of the child whose custody is in question”
From these cases, it is clear that if a party dies, it is not as simple as the child living with the surviving parent. Anyone concerned with the welfare of that child can apply for Orders (in accordance with Section 65C of The Act) should the unimaginable occur. Consideration should therefore be given to this unlikely possibility, whether it be through parenting Orders or careful estate planning, and the lawyers at Rafton Family Lawyers can provide you with the expert advice in relation to that.
For more information or to enquire about a consultation, contact us at reception@rafton.com.au