Parenting, Death and Family Law

11 October 2021
Parenting, Death and Family Law

Parenting, Death and Family Law – The Forgotten Relationship
Jordan Ingleton | 11 October 2021

Parenting matters in the Family Court require significant thought by the parties involved to reach an agreement as to what arrangements will work best for the children as each child grows. Often, final parenting orders will include clauses on communication, interaction with medical professionals, orders relating to schooling and more. Somewhat surprisingly, what is often missed, is an order specifying what will happen to the children, if one of the parties dies unexpectedly.

So what happens if a party dies?

Well, that depends on the situation at the time of the death. Usually, one of the following situations will be present at the time:
1. Parenting orders (interim or final) have already been made, and ‘in force’ as at the time of death;
2. Parenting proceedings are pending before the Court, but have not yet been finalised;
3. There are no orders, but a testamentary guardian has been appointed pursuant to the Will of the deceased; or
4.There are no orders, and no proceedings on foot at the time of the death.

1.Parenting Orders are in place at the time of Death

If parenting orders are in place at the time of death, but those orders do not make provision for what is to happen in the event of the death of a party, then Section 65K of the Family Law Act (FLA), or Section 94 Family Court Act (WA) (FCA) applies.

65K FLA/94 FCA, provide that the surviving parent cannot simply require the children to live with him or her. Instead, the surviving parent should apply for a parenting order that deals with whom a child is to live.

Upon making such an application, the surviving parent will be required to serve a copy of the application on any potentially interested parties, such as step-parents, grandparents and the like, depending on how involved in the children’s lives that person has been, or continues to be.

Acting quickly is of the utmost importance in these situations, as Section 65K FLA /94 FCA allows any person who is ‘concerned with the care, welfare or development of the child’ to make an application for parenting orders.

While this may not seem ‘fair’ to the surviving parent, the Family Court is not concerned with fairness, but rather in determining what arrangements will be in the children’s best interests.

2. Parenting orders are pending, but not yet finalised

Simply, when a party to a parenting matter dies before the proceedings are finalised, then those proceedings come to an end. This is commonly referred to as the ‘doctrine of abatement’ and was recognised by the High Court in the matter of Vitzdamm-Jones v Vitzdamm-Jones (1981) FLC 91-012.

In this situation, the surviving party may seek to file a fresh application for parenting orders, but again, the surviving party will be required to notify any person who is ‘concerned with the care, welfare or development of the child’ of that application.

If interim orders are in place, those orders may by virtue of the doctrine of abatement, become final, but can be challenged by a non-parent party who has a connection with the child making application for parenting orders.

In any event, it is of the utmost importance that you seek legal advice urgently if this occurs.

3. There are no orders, but there is a testamentary guardian appointed pursuant to a Will

In WA, a testamentary guardian can be appointed by a party through their Will, to care for a child after the death of that party. The appointment of a testamentary guardian only comes into effect when the last surviving parent of a child dies. The appointment can occur earlier, provided that the commencement date, and conditions, are specified in the Will.

If you appoint a testamentary guardian in your Will, and no one challenges the appointment of that guardian, then the Family Court will have no reason to intervene, and no orders need to be made.

However, if someone does challenge the appointment of a testamentary guardian, the Family Court can, and often does, make orders that override that appointment, if it believes that doing so will be in the child’s best interests.

The Court would likely consider the Will, and the wishes expressed therein, when making an order for the care of a child, but will not be bound by those wishes.

4. There are no orders, and no proceedings on foot

In this case, the answer is very simple. The surviving parent will continue to have parental responsibility for the children, which allows them to make decisions as to where those children reside, where they go to school, and all other decisions that a parent usually will make on behalf of a child.

Again, however, there is nothing stopping a non-parent party, who is ‘concerned with the care, welfare or development of the child’ from making an application for parenting orders at the Family Court.

In this situation, if you are the surviving parent, we strongly advise seeking urgent legal advice to ensure that arrangements can be made for the children quickly and efficiently and to avoid unforeseen applications by interested non-parties.

So what is the takeaway from this all?

Well, simply – if you are in Court on a parenting matter, make sure that any orders made also include provision for what will happen if one of the parties dies. It’s a simple order, that does not cost any extra to include, but it is an order that may potentially save you tens of thousands later on.

If you are not in Court, then appointing a testamentary guardian in your Will can help inform the Court of your wishes, and may assist the Court to make a decision if a conflict arises, even if it cannot ensure that your wishes will be carried out exactly.

At Mossensons, we provide advice on this area, and are able to make applications as required to ensure that your children’s interests are best insured.

Contact our Mr Jordan Ingleton to discuss your situation today, and see how we can help you ensure a safer, more secure tomorrow.

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