What Happens if Parents have Separated, and a Parent then Dies?

What happens if Parenting Orders don’t set arrangements for the children, in the event of one of the parents dying?

I am regularly involved in advising people about appropriate parenting orders; negotiating or mediating orders between parents; and drafting orders and court applications.

Occasionally a parent with parenting orders will ask me: What happens to the kids if one of us (parents) dies?

When parents separate, the Federal Circuit and Family Court of Australia can make parenting orders that specify where children should live and who they should spend time with.

Many parenting orders don’t include provisions about where a child should live if they die.

Section 65K of the Family Law Act 1975 (Cth) sets out what should occur in this situation (i.e. if the order doesn’t specify what is to happen upon one of the parents dying.)

Section 65K States:

1. If a parenting order is in force that provides that a child is to live with one of the child's parents and that parent dies and the parenting order does not provide for what is to happen on that parent's death,
2. the surviving parent cannot require the child to live with him or her.
3. The surviving parent, or another person (subject to section 65C), may apply for a parenting order that deals with the person or persons with whom the child is to live.
4. In an application under subsection (3) by a person who does not, at the time of the application, have any parental responsibility for the child, any person who, at that time, has any parental responsibility for the child is entitled to be a party to the proceedings.

What does 65K mean?

Let consider this situation as an example:

• There are parenting orders which say the children live with the mother 9 days a fortnight and the father 5 days a fortnight.
• The mother unexpectedly dies.
• There is no order addressing what happens regarding arrangements for the children if she dies.

Under section 65K, the children shouldn’t automatically live solely with the father.

IF – the maternal grandparents were a big part of the children’s daily lives, they could apply to the court for an order that the children spend time with them.

IF – the father wishes for the children to live with him solely, he may need to seek a new parenting order from the Court.*  (*Federal Circuit and Family Court of Australia.)

If any application to the Court, the Court will consider what arrangements are in the best interests of the children taking into account the factors set out in Section 60CC of the Family Law Act.

Can a Parent's Will override Section 65K of the Family Law Act?

No. A provision in your Will cannot override section 65K as the Family Law Act takes precedence over a will. Your Will can set out your wishes about who you would like to care for your children, but it cannot make a legal binding appointment of a guardian that would stop the surviving parent or another person from applying to the court for a parenting order.

Seek Legal Advice

If this situation arises and you are a surviving parent or a family member concerned with the care, welfare and development of the children, we recommend you seek legal advice from an experienced family lawyer.